ROBERT I. LEVY

Attorney & Counselor at Law - A Professional Corporation

(510) 465-0025

Real Estate and Business FAQs

As a Plaintiff to a Lawsuit, Can I Obtain a Lien Against the Defendant’s Property Before I Obtain a Judgment?

Business Law

In certain types of California lawsuits that involve commercial transactions, a plaintiff can apply to the Court and obtain a pre-judgement lien against the defendant’s property. A pre-judgment lien potentially locks up the defendant’s property until the case is over, which would preserve that property for enforcement of the plaintiff’s judgment in the lawsuit.

Obtaining a pre-judgement lien gives a plaintiff a couple of advantages. First, it greatly improves the likelihood that the plaintiff will collect on any judgment they obtain in the lawsuit. Second, it places a great deal of pressure on the defendant to agree to a settlement of the lawsuit on terms that are favorable to the plaintiff. Therefore, under the proper set of circumstances, obtaining a pre-judgement lien can be a very effective strategy for a plaintiff.

The application or request to the Court is referred to as an application for a pre-judgment right to attach order. There are quite a few technical requirements in successfully obtaining a pre-judgment right to attach order. The biggest obstacles require the plaintiff to establish that the claim is a “commercial” claim and that the plaintiff is likely to obtain a judgment against the defendant on that claim.

I have represented many East Bay California clients in applications for pre-judgment right to attach orders. If you have a claim that you want to determine whether or not you can obtain a pre-judgement lien upon, or a plaintiff has filed an application for a prejudgment lien against you, please feel free to contact me to arrange for a consultation at (510) 465-0025.

 

 

Neighbor Property Disputes

General Information

Property disputes with your neighbor can be very troubling, particularly when you live in the property. They come in many varieties, ranging from simple tree issues to complex boundary and easement disputes, and even acquiring a neighbor’s property or a portion of their property using legal theories such as adverse possession and easements by prescription.

Most neighbor disputes involve very complex legal theories, and the outcome of the dispute is often determined based on two factors, the case facts/evidence, and the attorneys’ understanding of these complex areas of law.

I handle a variety of neighbor disputes including overhanging trees, easement issues, boundary disputes, adverse possession and prescriptive easements, and more. Wherever possible, I seek to accomplish client goals quickly and cheaply through direct communications and through the mediation process, and when circumstances warrant it, litigating the issues until the client’s goals are accomplished.

I have represented many East Bay clients in neighbor disputes. If you have questions, or need representation by a California real estate attorney involving a property issue with your neighbor in either the residential or commercial setting, please feel free to contact me to arrange for a consultation at (510) 465-0025.

 

Marvin Actions: If title to a property is not in my name, can I recover a 50% property interest if the title holder agreed to split it with me?

General Information, Real Estate Law

Maybe. People can agree to just about anything, as long as the agreement has certain essential components, such as consideration; a writing, if it is required; and the matters agreed to cannot be illegal.

So, if there is a written agreement of ownership that is inconsistent with how title is held on the deed, that agreement may be enforced by the Court even if the deed does not reflect the true terms of the agreement.

Likewise, if the agreement is verbal or even implied based upon conduct, it too may be enforceable. There are, however, far more hurdles to overcome in that situation. The first obstacle would be the requirement under the statute of frauds that an agreement relating to or conveying real property and an agreement that takes more than a year to perform is required to be in writing. Often the statute of frauds defense, however, can be overcome by partial performance or the parties’ conduct.

The next obstacle would be the burden of proof. The holder of record title to property (that is, the title on the deed) is presumed to be the owner of both legal and full beneficial title to the property. This presumption made be rebutted only by clear and convincing proof. The clear and convincing evidence standard requires that the evidence be “so clear as to leave no substantial doubt in the mind of the trier of fact; it must be sufficiently strong to command the unhesitating assent of every reasonable mind.”

This type of lawsuit is referred to as a Marvin Action. Although these are not easy cases to win, with the right type of evidence, a Plaintiff asserting a Marvin Action can prevail. Further, these cases often settle without the necessity of having to go to trial and fully prove your case. I have represented clients in East Bay California and other parts of the Bay Area California in Marvin Actions. If you believe that you have a right to property under these types of principles or agreements, or have had a Marvin Action asserted against you, please feel free to contact me at (510) 465-0025 to arrange for a consultation to determine whether or not the evidence might support a Marvin Action.

What Can a buyer do if she/he believe a seller in a real estate transaction has failed to disclose defects regarding the property?

Real Estate Law

Seller’s Duty of Disclosure

A seller of residential real property has both a statutory and common law duty to disclose all material facts to a buyer of the property, including disclosing all facts known to the seller that materially affect the value or desirability of the property. A seller’s failure to fulfill this duty of disclosure is considered actual fraud.

When a seller of real property “fixes up” the property to cover up defects, that seller has a duty to disclose the concealed fact to the buyer. When a person takes positive actions to conceal defects in the property or other material facts, or otherwise takes some action to prevent discovery of the defects by the buyer, it is the same as if there were an affirmative misrepresentation.

Seller’s Agent’s Duty of Disclosure

A seller’s real estate agent has a duty to disclose all known facts to the buyer, and the additional duty to inspect the seller’s property and disclose to the buyer all defects that are discovered.

Buyer’s Agent’s Duty of Disclosure

A buyer’s real estate agent has a duty to advise and consult with the buyer, and this duty includes the discovery and disclosure of material facts that may affect the buyer’s decision.

Who Can I Sue and What are My Remedies

A buyer who has been defrauded in the sale of residential property can sue the seller if the seller is believed to have failed to fulfill their duty of disclosure, and the real estate agents for the seller and/or the buyer, if the buyer believes either or both of the real estate agents failed to fulfill their duties of investigation or disclosure.

When a buyer in a real estate sales transaction is defrauded, that buyer can use either the remedy of rescinding the sales transaction, or recovery of the buyer’s damages.

I have represented clients in East Bay California and Oakland California in failure to disclose actions. If you have questions, or need representation by a California real estate attorney involving a sale or disclosure dispute, please feel free to contact me to arrange for a consultation at (510) 465-0025.

Title Disputes, Clouds on Title, and Quiet Title Actions

General Information, Real Estate Law

If one person claims to be the owner of an interest in real property, and another person claims to be the owner of that same in interest in the same property, either may sue the other for a judgment resolving that conflict. That type of lawsuit is called an action to quiet title or a quiet tile action. A successful plaintiff obtains a judgment in a quiet title action which “quiets” (or eliminates) adverse claims to the rightful owner’s title.

A quiet tile action can be very useful and effective in a few different scenarios. First, when two people claim the same ownership to the same property. Quiet title actions can also be brought for the purpose of foreclosing or quieting adverse claims that show up as exceptions on title reports. The plaintiff’s objective, under this scenario, is to eliminate a cloud on title, thereby making his or her title marketable.

In some cases, the plaintiff will not have record or legal title (meaning that the plaintiff’s name will not appear on the deed to the property), but the plaintiff will nonetheless have an equitable claim to that title. Although technically under that scenario it is not a quiet title action, it is very similar to a quiet tile action. This situation comes up when title on the deed says one thing, but the parties have agreed to hold equitable title in some other way not reflected on the deed or inconsistent with what is stated on the deed.

A quiet title action is also appropriate to establish that the plaintiff has acquired title by adverse possession or that a plaintiff has acquired easement rights through prescription or some other equitable means.

I regularly represent clients in East Bay California in quiet title actions. If you have questions, or need representation by a California real estate attorney involving a title dispute or cloud on title, please feel free to contact me to arrange for a consultation at (510) 465-0025.

I am in Default on My Home Mortgage In Oakland – What Are My Options?

Real Estate Law

Over the course of the past few years, as the declining economy has caused property values in the East Bay and the Bay Area to rapidly drop, I have counseled hundreds of homeowners regarding strategy in dealing with impending foreclosure on their home, or with a 2nd mortgage.  The questions are always the same:

•    What are my available options
•    What are the consequences of walking away
•    Can I be held personally responsible for any part of the mortgages on my home
•    What about a short sale

This area of law is extremely complex, and the answers to all of these questions, and many other related questions, is dependent upon your individual circumstances. Circumstances such as:

•    Whether there is just one or multiple mortgages, and if there are multiple mortgages, which lender is foreclosing
•    Do you live in the property
•    Were any of the mortgages refinanced since purchasing the property
•    What procedure is the lender utilizing to foreclose

There are lots of other circumstances which bear on a underwater homeowner’s options in dealing with foreclosure.  I offer a flat fee consultation, which enables homeowners with reliable information and advise regarding the consequences of each option available to them, and enables them to make some very difficult but important decisions.  I offer these consultations, which typically last about an hour, or more if necessary, at the flat rate of $350. If you believe that you would benefit from a foreclosure consultation, please feel free to call me to arrange for a consultation.