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 San Jose Business & Commercial Law Blog

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SAN JOSE BUSINESS & COMMERCIAL LAW BLOG

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Do California Property Owners Owe Third Parties An Affirmative Duty Of Care To Discover Criminal Acts Being Committed On The Property?

Do California Property Owners Owe Third Parties An Affirmative Duty Of Care To Discover Criminal ActIt is well-settled California law that land owners are required to maintain land in their possession and control in a reasonably safe condition. California courts look to what are called the “Rowland factors” to evaluate if a duty is owed beyond the principles of Civil Code section 1714:

  • the foreseeability of harm to the plaintiff
  • the degree of certainty that the plaintiff suffered injury
  • the closeness of the connection between the defendant’s conduct and injury suffered
  • the moral blame attached to the defendant’s conduct
  • the policy of preventing future harm
  • the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.[1]

In the recent case of Williams v. Fremont Corners Inc., The Sixth Appellate District found that the defendant shopping center had no duty to take affirmative measures beyond those already found in the record to discover criminal activity on the premises.

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What Use Constitutes Adverse Use Sufficient to Establish Prescriptive Easement in California?

What Use Constitutes Adverse Use Sufficient to Establish Prescriptive Easement in CaliforniaIn the recent case of ranch at the falls, LLC versus Keith O’Neal et al, a ranch owner tried to establish prescriptive or equitable easement rights along private roads to reach her ranch. Ms. Hart prevailed at the trial court level but was not so fortunate on appeal. California’s second Appellate District concluded that Ms. Hart had failed to meet the hostility requirement to establish prescriptive easement.

Ms. Hart use the private roads from 2002 until 2012. However because Ms. Hart also owned several properties within the homeowners associations named in the lawsuit, she was personally entitled to use the private streets of the communities. The court cited Witkin, noting “Prescription cannot be gained if the use is permissive.”

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CALIFORNIA BORROWERS CANNOT WAIVE THE RIGHT OF REINSTATEMENT, EVEN IN A LOAN MODIFICATION.

Diemer Wei San Jose Real Estate LawyersWe are still seeing the effects of the subprime meltdown ripple through the appellate courts. In the case of Taniguchi v. Restoration Homes, what appears on first blush to be a straight forward analysis that under California law borrowers can stop a foreclosure sale by reinstating the loan had a twist.

The Taniguchis own a home in San Mateo County and in 2006, they borrowed $510k. They missed 4 loan payments in 2013, and normally to cure the default with the lender, the borrowers would simply need to reinstate the 4 missed payments and late charges under the promissory note.  Here's the twist back in 2009, the Taniguchis entered into a loan modification that adjusted the principal amount, reduced the interest rate and monthly payments, and deferred until the maturity of the approximately $116k (including accrued and unpaid interest and principal, fees, and foreclosure expenses).

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Seven Years After the Homeowner’s Bill of Rights (HBOR) – A legal update:

Homeowners Bill of Rights san jose ca residentsAfter the subprime meltdown, sweeping legislation was enacted in an effort to protect Californian homeowners. HBOR cases have since trickled in over the last seven years with a new one regarding fees for borrowers who successfully halt a foreclosure sale with a temporary restraining order.

1.  A Prevailing Borrower Is Entitled to Attorney’s Fees After Obtaining a Temporary Restraining Order.

After the Monterossa case in 2015 which held that HBOR provided for award of attorney fees and costs when a preliminary injunction issues, it was logical to then wonder if the same would apply after the borrower obtains a TRO. A TRO is an early court order, one that is obtained on a one day ex-parte notice. It is often difficult for a loan servicer or lender to mobilize in time to oppose a temporary restraining order.

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California Supreme Court Rules Foreclosure Purchasers Need To Record Their Trustee’s Deed Before Starting Eviction

California Supreme Court Rules Foreclosure Purchasers Need To Record Their Trustees Deed Before StarOwners who take title via a foreclosure sale must perfect their title before beginning eviction proceedings. This may seem obvious, but the issue was unresolved in California until just a couple of weeks ago. 

What is perfection of title? In this case, it is the recording of the Trustee’s Deed. Just being the successful bidder at sale is not enough to run down the courthouse to file an unlawful detainer.

Why is this an issue? Because of the 15 day retroactive language in Civil Code Section 2924h(c) which states the trustee’s sale “shall be deemed perfected as of 8 a.m. on the actual date of the sale if the trustee’s deed is recorded within 15 calendar days after the sale…” 

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Co-ownership of Real Estate - Who Can Lease Or Raise Rents To Co-owned Property?

Who Can Lease Or Raise Rents To Co owned Property San Jose CAIn California, real estate often has multiple owners due to investment structure or inheritance of family property.

Co-owners of California real estate can hold title to the property as joint tenants or as tenant-in-common.  These two types of ownership have different legal ramifications and tax treatment.  However, under the law, each co-owner has equal rights to the property regardless of co-ownership percentage.

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Legislative Update: California Extends Homeowner’s Bill of Rights

California Extends Homeowners Bill of RightsAfter the subprime meltdown, California enacted the Homeowner’s Bill of rights (HBOR) to amend the non-judicial foreclosure processes. Among the changes were to bar “dual-tracking” and require a 30 day pre-foreclosure communication period. Those changes sunset in 2019. SB818 reinstates certain provisions of the HBOR and Governor Jerry Brown signed the bill a few weeks ago. Most of the bills signed will go into effect Jan. 1, 2019. [https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB818]
 

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