Fences and Boundary Line Disputes

Easements, Mediation, Residential , , ,

Fences are frequent sources of boundary line disputes

Fences are frequent sources of boundary line disagreements and disputes. A business or a homeowner decides to erect a fence without first determining where the actual property line lies. His neighbor then learns that the fence was not placed on the actual boundary line, but on his property. The neighbor might decide that the fence being on his property (encroachment) doesn’t bother him and does nothing about it. This approach has the advantage of preserving good will between the neighbors. However, if either owner decides to sell their property, they will need to disclose the encroachment to any potential buyers so that they can consider the issue as part of their purchasing decision.

Equal Contributions to Boundary Line Fence Maintenance

California code requires adjacent landowners equally contribute to maintain walls and fences between them, unless one of the two landowners chooses to let the remaining sides of his property remain unfenced. However, if that landowner later fences in his property, he will be responsible for payment of his proportional share of the original value of the common fence.

Spite Fences and boundary line disputes

What have become known as “spite fences” are also regulated by code. They are defined as “a fence or other structure in the nature of a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property is a private nuisance.” Trees and hedges that are planted in a row to form a perimeter may be deemed a fence. The law provides strong remedies, including injunctions, against “spite fences.”

Encroachment

A common question posed to real estate attorneys are in regard to a dispute with an adjoining landowner involving an encroachment. An example of encroachment would be when another person puts up a structure like a fence that intrudes on your property. This issue might come up if when one of your neighbors builds a structure that is partially on your property. Typically, the courts will apply one of three legal theories to resolve such a case. They are the doctrine of adverse possession or prescriptive easements, the agreed boundaries doctrine, or the relative hardship doctrine. Which method that would be most applicable in your particular situation is best determined by a qualified real estate attorney.

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

Construction Claims: Cost Overruns and Delay Claims

Business Law, Easements, Mechanic's Lien, Residential , ,

Construction contract bidding is a complex process

Contract bidding is a complex process that requires owners and contractors to provide detailed information about a project. It is necessary in order to reasonably estimate the costs associated with building projects. Though detailed information and careful consideration may have been involved in the bidding process, inevitable changes made after contracts have been signed can result in significant differences between project bids and project costs.

Circumstances unforeseen prior to the start of a project can have significant negative financial impact on contractors, sub-contractors, and owners. At the DiJulio Law Group, we have an in-depth understanding of complex issues associated with documenting, proving and recovering the costs associated with changes to a contractor’s performance resulting from a variety of factors.

Construction cost overruns

Most construction projects benefit from a modicum of planning, but circumstances occur that cause some projects to go astray which make cost overruns inevitable. Contractors and sub-contractors must stay ahead of the project by acknowledging problems immediately and providing solutions. Informing owners is in the best interests of contractors as well.

A useful process in cost management of a project is to compare the budgeted/estimated project compares with the completed actual project. Reasons for cost overruns can quickly be determined by this method. Once the project is completely finished, and the project costs are paid, a project completion meeting with significant individuals of the project team to discuss what went right and what went wrong is highly recommended.

Our experience includes all types of construction cost overrun claims, such as impact and delay claims, changed conditions or differing site conditions claims, and defective specification claims. We use an well informed, in depth approach in resolving our clients’ disputes.

Construction delay claims

As a construction delays can create major problems and become very costly, the schedule is a critical part of any construction project. Careful scheduling can help protect the interests of contractors and property owners, but there may be unforeseen circumstances or events that give rise to construction delay issues.

These delay issues may cause any number of construction disputes. Effectively managing these disputes often requires seasoned legal judgment. Such judgment comes as a result of having protected the interests of contractors, sub-contractors, and owners with respect to a wide variety of delay-related issue such as weather, concurrent, or owner-caused delays.

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

Buyers, Sellers and “Dual Agency”

Residential , , , , ,

The Multiple Roles of Agents and Brokers

Buyers and sellers of real estate frequently don’t understand the role of real estate agents and brokers, their functions, and what interests they represent.

All real estate agents are licensed under a real estate broker, and a broker may employ many agents. It is therefore possible for a buyer to work with one agent who is licensed by the same broker as the listing (selling) agent. Legally speaking, real estate agents are categorized as “salespersons”, and who act under the “supervision” of a real estate broker.

When an undecided buyer, looking for a home, contacts an agent, they create a single agency relationship. The agent’s relationship with the buyer changes if the buyer chooses a home listed by that agent’s broker. This situation creates a dual agency. The agents could work at separate offices and be strangers to each other, but since they are licensed by the same broker, they are still operating under dual agency if one agent represents the buyer and the other represents the seller. Not all single agents note the distinction. As a practicality, most of these dual agents act the role of dual agency but continue to function as single-agency representatives.

In California, representing both buyer and seller (dual agency) is permitted with consent of all parties. Any confidential information pertaining to one party cannot be transmitted to the other party, and vice versa. This arrangement can be to the advantage of all involved, since all parties may work to achieve common goals, rather than one party trying to take advantage of the other party.

Real estate brokers and agents actually have no legal obligation

What buyers and sellers alike may not realize is that, in many cases, real estate brokers and agents actually have no legal obligation to look after their best interests. In a dual agency situation, both brokers and agents may guide the transaction to their own best advantage. All states provide avenues for brokers to “double end” a deal, working with both the buyer and seller in the same transaction. They then avoid the need to split commission income with a cooperating broker. In such instances, it is possible that neither the buyer nor seller is fully represented.

Many states now allow brokers to provide services to buyers and sellers as “transaction brokers” or “facilitators,” without traditional fiduciary duties of loyalty and obedience.

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

Legal Issues for Condominium and Homeowners Associations

Residential , ,

…these homeowners associations often comes with extensive and complex rules

In southern California, condominium and homeowners associations have become an integral aspect of residential ownership for many people. Ownership under these associations often comes with extensive and complex rules. There may be rules that govern everything from where you can park, how expensive your assessments can be, what items your assessments can cover, and or whether you can display holiday lights or a flag. As a result, legal guidance from a qualified condominium or homeowners’ association attorney is well advised in order to understand your legal rights and responsibilities.

There are many areas of association business that require qualified legal advice such as document amendments, collections, contracts, rules, governance, and other such legal issues that will arise.

Assessment revenue provides necessary funding

Assessment revenue provides necessary funding for community associations. The legal obligation to collect delinquent assessments is the duty of the association’s Executive Board, Board of Managers, Trustees or a Board of Directors. This function is vital in order to protect the interests of the association as well as the property values of its members. The ongoing maintenance of the common areas, units or homes in the development helps maintain property values. However, it can be difficult to enforce at times and just one uncooperative owner can detract from the overall appearance of the development and substantially lower property values.

…increasingly defined in litigation

Homeowners and their community association relationships have been increasingly defined in litigation in recent years, due to the rapid growth of association governed communities and the issues being presented to the courts. Disputes that cannot be effectively resolved through mediation and non-judicial measures may require litigation.

Small Claims Court for Resolution of Some Issues

There are matters that may arise matters that don’t justify the need of legal counsel, or the expense to achieve an acceptable resolution. Some associations employ Small Claims Court to resolve issues relating to the collection of fines and delinquent assessments.

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

Protection From Foreclosure Fraud

Foreclosure, Residential , , , , , , ,

California’s Homeowner Bill of Rights and Foreclosure Fraud

Foreclosure fraud in California has increased due to the number of homeowners who were talked into buying more property than they could afford. Predatory lending practices became commonplace as brokers used any means possible to qualify marginal borrowers. Mortgages with affordable initial rates that quickly adjusted to much higher rates put many in an untenable financial position. Extreme types of adjustable rate mortgages reset periodically throughout the life of the mortgage, continuously going higher. Mortgages with inconspicuous balloon payments that required borrowers to produce enormous sums of money were included in many contracts.

The increasing number of unaffordable mortgages led to an endemic number of foreclosures and with them followed foreclosure fraud. Foreclosure fraud utilized faulty documents and/or procedures, which resulted in homeowners wrongfully losing their homes. State and local government agencies are now investigating allegations of improper foreclosures by banks and other lending institutions. Meanwhile, homeowners have also filed foreclosure lawsuits, alleging banks used an unethical foreclosure process to force them out of their homes.

Between 2008 and 2011, more than one million homes in California were foreclosed. In many cases, lenders did not provide homeowners with a significant opportunity to obtain loss mitigation options to avoid foreclosure and also engaged in extensive mortgage servicing misconduct

A law, California’s Homeowner Bill of Rights, that reformed some aspects California’s foreclosure process went into effect on January 1, 2013. It was formulated in order to better protect homeowners in foreclosure. The Homeowner Bill of Rights makes the nonjudicial foreclosure process in California more fair and transparent. The law’s protections for homeowners and now the Homeowner Bill of Rights can aid homeowners facing foreclosure in California.

The Service members’ Civil Relief Act and Foreclosure Fraud

A federal law that provides foreclosure benefits to those on active military is called the Service members’ Civil Relief Act (SCRA). If you took out a mortgage before you went on active duty, you are entitled to a variety of protections against foreclosure.

Under the Service members’ Civil Relief Act (SCRA), all states are required to have judicial review of foreclosures and a judge is required to authorize foreclosures on homes of military members. Foreclosure authorization can only be given after a hearing at which military members are properly represented. The SCRA was enacted to protect active military members, some of them on duty overseas and with no ability to make mortgage payments. It has been reported that some service members have returned from active duty to discover that their home was in active foreclosure.

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

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