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Court decisions in other states, as well as California bankruptcy courts, have implied that there are strict rules regarding assigning and recording assignments of Deeds of Trust and Promissory Notes. The Salazar bankruptcy court decision implied that the note had to be assigned, and in possession of the foreclosing lender. However, California state courts are independent, and are charting their own approach to these issues. Parties who are considering conducting a California foreclosure, or are the owner facing a foreclosure, should consult with an experienced Sacramento and El Dorado real estate attorney to clarify the requirements.

In Debrunner v. Deutsche Bank National Trust Company the plaintiff, attempting to stop a trustee’s sale, made arguments based on the recorded, and unrecorded, documents relied on by the lender. California law regarding trustee’s sales is detailed and specific, and plaintiffs often look for specific technical defects in the process.

The Note was not Assigned with the Deed of Trust

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Commercial real estate lenders often require a guaranty signed by a financially responsible California guarantor. Included in the guaranty is a waiver of specific rights, often including a waiver of the antideficiency rights of California Codes of Civil Procedure sections 580 and 726. These are significant rights being given up; for this reason potential guarantors presented with waivers should consult with an experienced Sacramento and Yolo commercial real estate lawyer to fully understand what the consequences of the waivers may be.

Such waivers were included in the guaranty in Gramercy Investment Trust v. Lakemont Homes Nevada, Inc. which involved foreclosure of a $35 million dollar loan on a commercial development. The twist in this case was that the guaranty stated that New York law governed the document. California sections 580a and 726 (waived by the guarantor) limited deficiency judgments to the difference between fair market value and the entire amount of the loan balance due at time of foreclosure. New York law also has similar antideficiency protection, though with a different calculation. The court calculated the deficiency without applying California law, and the borrower appealed, arguing that New York law, and its antideficiency protections, should have been applied.

apartment_houses.jpgThe court of appeal found first that, here New York law did not apply. First looking at the choice of law provision, it found that New York antideficiency rules do not apply when the real property is not located in New York. The courts of New York agree with this proposition. Additionally, as California has similar protection for debtors against certain deficiency judgments, it is of little consequence whether New York or California law applies.

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It often happen that creditors and plaintiffs against corporations and LLCs in California find that the corporation has no assets from which to collect. They then want to collect from the individuals behind the entity. A shareholder (or LLC member) may also be liable for the corporation or LLC’s obligations under the common law “alter ego” doctrine (called ‘piercing the corporate veil’). Courts regard the alter ego doctrine as a drastic remedy and do not easily disregard the corporate form, so Creditors and plaintiffs should consult with an experienced Sacramento and El Dorado business attorney.

The corporate entity may be disregarded and the shareholders held personally liable for corporate debts because of the manner in which they have dealt with the corporation. There are two requirements:

Unity of interests: First, the shareholders sought to be held liable have treated the corporation as their “alter ego,” rather than as a separate entity; and Resulting injustice: Second, it would “sanction a fraud or promote an injustice” to uphold the corporate entity and allow the shareholders to escape personal liability for its debts.

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California commercial leases and rental agreements often have an option which allows the tenant -lessee the right to extend the term of the lease. Generally, the option language provides a specific method to exercise the option, and if the lessee does not follow the procedure, courts find the option was not exercised. In a recent decision, a tenant did not follow the required procedure, but the landlord waived the procedure, extending the term. However, three other tenants did not request the extension, and were not liable for rent. To avoid these kinds of problems parties to a commercial lease with an option should consult with an experienced Sacramento and El Dorado real estate attorney.

In Kavin v. Frye property was leased to open a dress shop in southern California. Kavin was the lessor. There were four lessees who signed the lease, but only two, Andrea and Sessi, were active in the dress shop. The other tenants (Frye & Morgan) were required to sign on primarily as guarantors of the lease. The agreement contain an option to extend the term. The option had to be exercised in writing no later than six months before the end of the term of the lease; if not done, the option automatically terminated .

store_display_1.jpgThe option was not exercised within the time period (and was terminated according to the lease). Meanwhile Sessi had a baby and gave up the dress shop, leaving it all to Andrea. Two weeks after the time to exercise the option passed the land went to the sop and asked Andrea if she wanted to extend. She said yes, so he dictated to her the words she wrote and signed the paper exercising the option. Andrea never discussed exercising the option with any of the other three tenants. Eventually, Andrea could not pay the rent any more, and abandoned the place with over a year left on the extended term. Kavin sued all four lessees for the balance of the rent for the full extended term.

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Sometimes people (and courts ) use the terms ‘license’ and ‘easement’ interchangeably by the parties to the license. But they are clearly different rights, with different legal consequences. There are differences in what uses the holder can make of the property, what the owner of the property can do about, and what happens if the property is transferred or the right is assigned to someone else. People with questions about what rights and liabilities they actually have should consult an experienced Sacramento, El Dorado, or Placer real estate attorney.

Easements

An ‘easement’ is a present interest in real estate, giving the holder a right to the real property and the ability to bring a suit for trespass or ejectment. Because it is an interest in the property itself, it is subject to the statute of frauds, so must be granted in writing.

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California homeowners facing foreclosure are right to be concerned about whether their mortgage is a non-recourse loan, or if they will end up personally liable for the loan. However, some foreclosed Californians are surprised to find that they may be liable for utilities after the trustee’s sale, when they no longer own the property. Experienced Sacramento and El Dorado real estate lawyers are seeing former owners being pursued by utilities for bills charged after they lost the house.

How It Works

In this problem there are two kinds of utility companies; the local government agency, and the private or quasi-public utilities. Local governments, such as City and County, may provide and bill for services such as sewer, water, garbage, and street cleaning. The non-government utilities provide electricity, gas, and other services such as phone or cable. In the case of government agencies, there are local ordinances that govern how they bill the consumer. Usually the agency is notified by the County Assessor when a deed is recorded which changes ownership of the property, and this is the legal trigger by which they change who they bill for the utilities. The agency is bound be the Assessors determination; an example is Sacramento City Code section 13.12.010

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Every California lease includes a covenant of quiet enjoyment. It protects the tenant from any act or omission which interferes with the tenant’s right to use and enjoy the property for the purposes contemplated by the parties. The recent decision of Fritelli, Inc., v. 350 North Canyon involved a tenant who did not closely read the lease, and was surprised that they waived the covenant of quiet enjoyment. Unlike California residential rental agreements, commercial lessees can modify or waive the covenant of quiet enjoyment; most form leases have a waiver built in. Property owner / lessors and potential lessees concerned with the issue should consult with an experienced Sacramento, Yolo, or El Dorado real estate attorney to discuss the language in their agreements.

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Fritelli entered a lease to operate a doughnut shop in a shopping center. The lease guaranteed the tenant “quiet enjoyment.” However, other provisions provided:

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Options are frequently entered concerning California real estate in a number of situations. A rent-to-own or lease option contract usually contains an option; options are taken on bare land in order to develop it in the future; and someone may option a parcel while they are trying to obtain neighboring properties. However, experienced Sacramento and El Dorado real estate lawyers are consulted after the agreement is entered and a problem arises, and the question becomes whether or not you really have an option or something else like a right of first refusal.

An offer to sell property on certain terms can usually be revoked by the offeror (owner) any time before it is accepted. However, if the offeror and offeree (potential buyer) enter an agreement, with “independent consideration” that requires the offer to remain open and irrevocable for a period of time, the offeror cannot revoke it. This is an option contract. “Independent consideration” means that there was an actual payment of consideration of some kind (money, a car, a bag of emeralds, etc.) that was separate and distinct from the payment for the purchase of the property if the option was exercised. If the option is contained in a lease, the provisions of the lease, including the rent to be paid, is sufficient consideration for the option.

money changer.jpegIf there is no actual separate consideration actually received by the Optionor, it remains revokable. However, in this case, if the option is exercised before it is revoked, the optionor becomes bound under the contract even there was no consideration.

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California commercial leases and rental agreements often contain a waiver of subrogation clause. While important, it is often misunderstood or overlooked, even though at its best it benefits both the landlord and the tenant. Parties negotiating leases will want to consult with an experienced Sacramento and El Dorado leasing attorney.

Generally speaking, one who makes payment on another’s behalf payment becomes entitled to be subrogated to the other’s rights. If I have agreed to insure your house, and I paid to repair fire damage to the house, I am subrogated to your rights to recover from anyone who was liable for the fire. That means I can sue them for damages. The waiver of subrogation prevents this. In commercial leases, the clause refers mostly to insurance.


How does it work?

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In 2009 the legislature enacted a law requiring that, during lease of the entire building, lending, or sale transactions for nonresidential buildings, owners must disclose “energy ratings’ developed by the U.S. Environmental Protection Agency. A sliding schedule of compliance is required, with the largest buildings starting in July 2012. Beginning July 2013 all size buildings will be required to comply. Commercial property owners may want to consult with an experienced Sacramento or Yolo Real Estate attorney regarding these transactions.

Under the new law, beginning in 2009 utility companies have been required to keep energy consumption records in a format compatible with the EPA’s Energy Star Portfolio Manager database. The law requires owners to use the data to benchmark the building’s energy use using the U.S. EPA Portfolio Manager system in advance of certain financial transactions, and to disclose statements of the building’s energy usage to potential buyers, lessees, and lenders.

factory_chimneys.jpgThe California Energy commission published proposed regulations last August which established the following schedule:

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