Can my HOA file a lien against my property?

Real Estate Laws, Residential , , , , ,

Who can file an HOA lien against my property?

A “Community Association” may file a condominium or HOA lien for assessments. A Community Association is defined as a nonprofit corporation or an unincorporated association created for the purpose of managing a common interest development including a condominium, a community apartment, a planned development, or a stock cooperative. Any association that filed a declaration may file a lien for assessments.

What can an HOA file for (dues, assessments, etc.)?

A California HOA may file a lien for any regular or special assessment validly assessed by the association. Regular assessments are “dues” to the association, and special assessments are one-time assessments levied to enable the community association to perform its obligations under the governing documents of the association, including an extraordinary assessment for an emergency situation. An HOA may also record a lien for a monetary charge imposed by the association as a means of reimbursing the association for costs incurred by the association in the repair of damage to common areas and facilities for which the member or the member’s guests or tenants were responsible, if such a lien is provided for in the declaration.

What other fees can be included in an HOA lien?

The following amounts may be included in the lien in addition to the amount of the delinquent assessment(s):

  • Late Charges (not to exceed 10% of the delinquent assessment amount)
  • Reasonable Fees and Costs of Collection
  • Reasonable Attorney Fees
  • Interest (not to exceed 12% annually)

What can I do if I receive a Notice of Delinquent Assessment?

You need to contact your insurance company to see if they will cover the claim. You may also need to go talk with an attorney especially if your insurance denies coverage.

There are prerequisites that must be met before a lien for delinquent assessments can be enforced. The HOA must offer the owner, and participate in if requested by the owner, dispute resolution pursuant to the association’s “meet and confer” program, or alternative dispute resolution with a neutral third-party required by California law, subject to certain requirements. Further, an assessment lien may not be foreclosed until the amount of the delinquent assessments alone equals or exceeds $1800 or the assessments are more than one-year delinquent.

DiJulio Law Group
https://www.dijuliolawgroup.com

California Transfer Disclosure Statement

Real Estate Laws, Residential ,

A Transfer Disclosure Statement (TDS) is required by Law

In California a transfer disclosure statement, also known in the industry as a TDS, is required by law. This statement requires residential property sellers to disclose, in writing for the buyer, details about the property they have on the market. These disclosure obligations apply to nearly all California home sellers, whether selling a single family home or a condo unit. It also applies to mobile homes. This document is one of the seller disclosures that buyers receive during their contract contingency period.

The TDS form must contain specific information about your home such as any improvements on the property, their condition, and any defects or malfunctions of the improvements. Also included is information about all appliances in the home, including which are included in the sale as well their functionality. Additionally, other pertinent information might concern any room additions, damage, or neighborhood noise problems.

Buyer and sellers have a vested interest in full disclosure

Potential home buyers need to know as much as possible about a property in order to evaluate whether they really want to buy it and the resources they need in order to make the purchase. Knowing about any potential repairs or upgrades needed to areas of the home would be a key factor in their decision to purchase a property. For the seller’s part, they may receive a demand from a buyer that alleges nondisclosure, fraud, or concealment.To avoid such complications and accusations, sellers too, need to disclose all relevant issues.

The sellers are not warranting the condition of the property

It is important to realize that, with the transfer disclosure statement, the sellers are not warranting the condition of the property. They are are simply disclosing its condition.

As it is the seller who is providing the information, this form must be completed in the seller’s own handwriting. Online information is available to aid sellers in filing out the required forms.

DiJulio Law Group
https://www.dijuliolawgroup.com

Mediation of Commercial Real Estate Disputes

Mediation , ,

Mediation has been proven effective

Mediation has been proven effective in commercial real estate disputes for a variety of reasons. Mediation may be conducted in a timely fashion, often within a few months of the dispute arising. For mediation, it is possible for just a few hours involved in one meeting will achieve mutual agreement or decide that the dispute must escalate. Also, when the agreement to mediate is part of a real estate contract, then the parties are bound to do so before they can escalate the dispute to litigation.

The Trained Mediator

Mediation evolves the parties to the dispute and a trained mediator. This mediator is someone completely unassociated with the dispute and has no vested interest in the outcome. They assist the parties in first identifying the sources of their conflict and then help them focus on the issues of real importance to them. The mediator then guides the parties through multiple possible solutions in an effort to reach an agreement, compromise or reconciliation. Another plus for mediation, when compared to arbitration, is that the parties may develop the solution themselves as opposed to having a solution determined for them by a third party. If the parties do reach a resolution and adopt a mediated agreement, the mediated agreement can be binding.

Litigation may have detrimental effects

If the parties are unable to reach a resolution or are dissatisfied with the mediation process, the parties may decide to pursue litigation. Litigation may have detrimental effects on both parties in a dispute. The value of the parties’ interest may be diminished by injunctions, restraining orders or other restrictions imposed by the courts. A variety of disputes can arise from a commercial property lease transaction depending on the terms of the lease, the type of the real estate and the uses of the property. Due to the possible long duration of litigation proceedings, land or floor space may not have the same value at the end of litigation as it did when the dispute arose.

DiJulio Law Group
https://www.dijuliolawgroup.com

What is Elder Financial Abuse?

Elder Abuse , ,

Depriving an elder of money or property is elder abuse

Financial abuse is depriving an elder of money or property, or of control over money or property, by theft, manipulation, undue influence, or fraud. While financial elder abuse can take many forms, the most widespread financial abuses include telemarketing fraud, identity theft, predatory lending and home improvement and estate planning scams.

Who might financially abuse an elder?

Potential financial abusers include: conservators, caregivers, agents acting under durable powers of attorney, trustees, representative payees, financial planners, attorneys, family members and friends.

Signs of elder financial abuse

  • Money or personal items missing without an explanation
  • A depletion of assets without adequate explanation or records
  • A standard of living below the elder’s financial situation
  • Undue interest by the caretaker in the elder’s financial situation
  • A new “best friend” who suddenly moves in
  • Unpaid bills, eviction notices, or notices to discontinue utilities
  • Cash withdrawals or transfers between accounts that the elder could not have made
  • Suspicious signatures on checks or other documents
  • No documentation about financial arrangements
  • Names added to the elder’s financial accounts
  • Bank statements or other bills no longer coming to the house, when the elder is not known to handle their finances electronically
  • Suspicious changes in titles, wills, or other important documents

Remedies for elder financial abuse

The best remedy to prevent elder abuse is by carefully choosing trustworthy people to act as agents, successor trustees or conservators when working with an elder’s finances.You can amend or end a power of attorney or revocable trust if you believe that a person already designated is not acting in an elder’s best interests, you can also demand an accounting.

If there is evidence of mismanagement, the agent also can be required to make restitution to the elder. In California, the reporting person is protected from both criminal and civil liability for reporting abuses. Victims can seek assistance from law enforcement or file a civil lawsuit.

Punitive damages may be imposed if there is evidence of oppression, fraud or malice. If you feel the problem is beyond your control, consider seeking assistance from the state Ombudsman‚ other government agencies‚ or a law firm like ours that focuses on elder financial abuse.

DiJulio Law Group
https://www.dijuliolawgroup.com

What are construction defects?

Residential , , , , , ,

Construction defects may be excluded from home owner’s policies

Almost any condition that reduces the value of a home, condominium, or common area can be legally recognized as a defect in design or workmanship, or a defect related to land movement.Faulty construction is generally excluded from home owner’s policies, although some ensuing damage like a fire due to an improperly installed gas pipe might pass–it’s a gray area.

In California, for any home or condo completed or closed escrow after January 1, 2003, SB 800 (Civil Code Section 895 et seq.) clarified the types of defects that the builders are responsible to fix.

Construction defects in design, workmanship and materials

Examples include, water seepage through roofs windows and sliding glass doors; siding and stucco deficiencies; slab leaks or cracks; faulty drainage; improper landscaping and irrigation; termite infestation; improper materials; structural failure or collapse; defective mechanical and plumbing; faulty electrical wiring; inadequate environmental controls; improper security measures and devices; insufficient insulation and poor sound protection; and inadequate firewall protection.

Construction Defects may result in landslide and earth settlement problems

Examples are expansive soils; underground water or streams; landslides; settlement; earth movement; improper compaction; inadequate grading; and drainage.Structural failures and earth movement conditions can be catastrophic in nature and present both personal injury and substantial property damage exposure. Landslide and settlement conditions may result in collapse of buildings; cracks in slabs, walls, foundations, and ceilings; disturbance of public or private utilities; and sometimes a complete undermining of the structures.

How do I prove that construction defects exists?

In most cases, you will need to hire the services of an independent construction defect expert. Experts are those who have the necessary training, education and experience to give testimony in court as to the cause of a defect. For example, if your roof leaks, a waterproofing expert who has designed effective roofs, evaluated other defective roof systems and knows how roofs should be built would be in a good position to testify. Your   lawyer cannot, in most cases, prove his case against the developer unless he has a qualified expert. Experts are available in nearly every aspect of residential construction.

DiJulio Law Group
https://www.dijuliolawgroup.com

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