Articles Posted in real estate law

California title insurance policies essentially indemnify the insured party against loss due to (a) Liens or encumbrances on, or defects in the title to said property; (b) Invalidity or unenforceability of any liens or encumbrances thereon; or (c) Incorrectness of searches relating to the title to real or personal property. The usual scenario Sacramento real estate attorneys see is where the insurance company has liability is if it misses a lien or title defect which later creates a problem. The insured property owner or lender then makes a claim and efforts are made to resolve the problem. But what happens when the title is transferred before the problem is discovered? the holder of insurance may get sued, and then they make a claim against their insurance. In a recent case in Fresno County buyer at a foreclosure was disappointed to learn that the foreclosing lender’s insurance would not help. Due to the policy language and the nature of a trustee’s sale, the insurance was out of reach, and the new owner had to pay off the lien.

In Hovannisian v First American Title Insurance Company, Wells Fargo held a loan secured by a “first” deed of trust. First American provided a lender’s title insurance policy. The borrower defaulted and Wells Fargo foreclosed. The Hovanissians, plaintiffs here, bought the property at the trustee’s sale. They subsequently discovered that there had been a deed of trust recorded prior to Wells Fargo’s which was still a lien against the property. Apparently, this had not been discovered by the title company. Wells Fargo was thus unaware of it.

The plaintiffs made a demand on the title company which was denied – they were never an insured under the policy. Wells Fargo then made a demand on the title company, likewise denied, because Wells Fargo no longer owned the property. Wells Fargo assigned its claims against the title company to the plaintiffs. Plaintiffs then filed this action against First American.

Adverse possession is a way of acquiring title to real property through continuous possession or use for a specified period of time. One of the elements required to prove adverse possession is that the possession or use must be “hostile to the owner’s title.” This does not mean that there must be a dispute between the parties, but that the claimant’s possession is without recognition of any rights of the true owner. It also requires the use be adverse, not with the owner’s possession. A key problem is whether the owner of the property knew or should have known of the use. In a recent decision which concerned a deeded easement the supposedly adverse use had not changed through the succession of owners, and had not interfered with the owner’s use of the property. The court found that the use was not legally “hostile” to allow the adverse claim. This case is unusual because the adverse possessor had fenced out the other party, which is nearly always sufficient to establish an element of the claim.

In Vieira Enterprises, Inc. v. John McCoy, the parties were owners of adjacent commercial properties. Vieira operated a mobile home park. The common boundary between the parcels was the centerline of Rosedale Avenue, and each owner had a 20 foot easement over the neighbor’s half of the road. However, at some time a 140-foot-long section of Rosedale Avenue had been fenced in by wire fences to the west of the private road, as well as by a wire gate across the road at the mobile home park’s northern boundary. Thus McCoy would appear to have been fenced out of his 20’ width of road plus the 20’ easement on the remainder of the road.

The problem arose when McCoy notified his neighbors that he was ready to begin a construction projection that would involve removal of the apparent boundary fences and the gate and his regular use of his right of way on Vieira’s property. The City of Capitola issued McCoy a zoning permit that stated conditions for his new building, including that “Rosedale Avenue shall be open to vehicular access for the proposed project and Cabrillo Estates Mobile Home Park at all times.

Co-owners of real estate do not always have the same goals, and when they cannot agree, they may need the court’s help. Such is the case in a Partition action; in its original form, it literally meant dividing the land up into parts, and assigning one part to each individual co-owner. Partitioning the land is still the preferred method under California law, but in most cases real estate attorneys argue that it is impractical, would not result in a fair split, and the property should be sold and the money split. When the property is primarily a building or house, it is usually sold. Either owner is allowed to buy the property, essentially making a credit bid of their own equity in the property, plus additional cash which buys out the other owners. There is a third way to partition- by appraisal, but in an odd recent decision the trial court incorrectly called for appraisal. The court of appeals said this was wrong, and explained the options in an action for Partition.

In Gayle Cummings v. Jennifer Dessel, the parties agreed to buy a property together east of Arcata, CA. Cummings put $80,000 down, they obtained seller financing, and the others were to make monthly payments and rehab the dilapidated residence. The defendants hit hard times and stopped paying the mortgage and working on the property. Plaintiff filed this action. The trial court ordered partition of the property by appraisal – each owner could bid to buy the other owner’s interest, with the minimum bid set by appraisal.

The court of appeals focused on the statutory language, as partition is governed by the California Code of Civil Procedure. Once the judge determines that a partition is called for, it “shall make an interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property and, unless it is to be later determined, the manner of partition.” (§ 872.720, subd. (a))