3125 Old Conejo Road

Thousand Oaks, CA 91320

(805) 230-2525

Real Property

Transactional Matters

Click each Practice Area topic below for more information

 

Real Estate Purchase Contracts and Required Disclosures

A real estate purchase transaction can be quite complicated due to the complexity of the property rights being transferred, the amount of money and financing being exchanged, and government regulations. Real estate transactions are governed by a wide body of federal and state statutes, local regulations and common law, including laws imposing duties on the seller for specific disclosures. To be enforceable under the Statute of Frauds generally, all agreements for the sale of real property must be in writing.  To be compliant under the law of disclosure, the seller must be careful to disclose all material facts – even if the seller may not think that the matter is important.

The substantial amount of money and financing involved in most real estate transactions, together with the complexity of the transaction process, entails a certain amount of risk of loss or legal problems if the transaction does not close as agreed.  Standard form contracts such as those from C.A.R. are typically used for residential and some commercial transactions. Such contracts are usually adequate and quite comprehensive.  However, adding complicated counter offers and addendums to the contract may warrant having a real estate attorney review the final agreements before signing.

 

 

Options, Right of First Refusal, Letter of Intent, Joint Ventures, Equity Sharing, Seller Financing

Certain real estate transactions consist of future rights to purchase property or agreements to acquire, manage and develop real property and may include partnership and joint venture agreements, LLC’s, and trusts  and various forms of seller financing, including All Inclusive Deeds of Trust, junior purchase money notes. Such transactions should be reviewed and structured by a real estate attorney.

Escrow and Title Matters

Most real estate sales involve a third party escrow company and title insurance.  Escrow instructions should ‘mirror’ the final sales agreement, plus language governing the escrow company’s procedures.  Title insurance is almost always obtained to insure the buyer’s ownership rights and the lender’s position in the chain of title. Some transactions undergo a change of terms before the escrow closes that requires a release of buyer’s funds to the seller or other material changes in the legal position of the parties.  In that event, a real estate attorney should review any proposed material changes to the escrow prior to release of funds or other change of legal position.  In addition, some escrows are prevented from closing because the title company has found some item of record or pending action in court that ‘clouds’ the title to where the title insurance company will not issue a policy until the matter is corrected.  Such problems can usually be resolved with the help of a real estate attorney.

 

Deeds of Trust, Promissory Notes, Installment Sales, Seller Financing, AITD

Most real estate sales involve financing in the form of mortgages secured by Deed of Trust. Sometimes the seller will ‘carry back’ some financing – part of the purchase price – secured by a junior deed of trust or an all-inclusive deed of trust (AITD) .  Seller financing may entail a risk of loss of equity, foreclosure and lender acceleration of the underlying mortgage based on the due –on-sale provisions in the underlying mortgage.  A real estate attorney can structure seller financing agreements to minimize or avoid some of the risks of seller financing.

Easement and License Agreements

Quite often, real property is encumbered by easements, recorded or implied.  An easement is a right to use the land of another for a specific purpose, most commonly for ingress and egress (access), and for utilities and storm drains.  The intended of use of land by another requires either a permanent recorded easement running with the land, or a revocable or fixed term license.  A real estate attorney should be consulted to draft and record the appropriate document, which is usually accompanied by a survey map of the easement.

Lease Contracts for Residential and Commercial Property

A leasehold is an estate in real property that grants significant legal rights of possession and imposes mutual covenants that are contained in the lease contract itself and implied under common law.  Residential leases are typically on standard form contracts such as those from C.A.R. while commercial leases, such as in retail or office leases, are on comprehensive contract forms used by the individual property owner.  A real estate attorney should review the proposed lease before it is signed.

 

 

Common Interest Development (HOA) Matters

Homeowner’s Associations, Condominiums and Common Interest Developments are subject to the provisions of the Davis–Stirling Common Interest Development Act (Civil Code § 1350 et seq.; “Act”), enacted in 1985. Under the Act, common interest developments are required to be managed by a homeowners association (HOA – a nonprofit corporation or unincorporated association), which homeowners are generally required to join upon purchase of the condominium or common interest unit. The homeowners and HOA rights and duties are defined by the express terms of the HOA By-laws, Covenants Conditions and Restrictions (CC&Rs) and HOA Rules (collectively referred to as ‘Governing Documents’). The Governing Documents and the HOA processes and individual owner’s rights are further controlled and governed by the Act.

Common disputes between the HOA and the homeowner include maintenance, modifications, structural defects, delinquent dues, neighbor disputes and common area use. Occasionally, the HOA may need to amend the CC&Rs to allow for changed circumstances.

 

 

Professional Real Estate Association Matters (MLS and Realtor Boards)

Professional Real Estate Associations, such as Southland Regional Association of Realtors®, require and benefit from experienced legal counsel when considering a wide array of operating issues, such as new contracts for MLS services, amendments to rules and regulations affecting Association members, and research, advice and counsel on new laws and court rulings pertaining to the real estate industry.

 

 

 

Litigation Matters