Law Offices of Glenn E Stevens

Law Offices of Glenn E Stevens A law practice dedicated to providing the best service possible for a variety of real estate issues.

12/06/2022

NEW LAW (2023). Regarding Homeowner’s Associations (HOA). California HOA documents and rules are changing — and these adjustments give homeowners more rights. Assembly Bill (AB) 1410 will prohibit an HOA’s conditions, covenants and restrictions (CC&Rs) from preventing a member from using social media or other online resources to discuss any issues of concern to members and residents, including, association elections, legislation; and criticisms of the association. This last prohibition is important. HOAs will now be prevented from retaliating against a member or resident from exercising their rights to peacefully assemble or use social media to discuss issues about the HOA. The new law further provides that in a declared emergency (such as COVID), the HOA is prohibited from taking enforcement actions for a violation of the CC&Rs when the delinquency relates to the homeowner’s nonpayment of assessments; and/or when the emergency makes it unsafe or impossible to fix the violation. The law further allows an owner of a unit to rent or lease out a room in the owner-occupied unit for more than 30 days.

01/18/2022

WHAT CONSTITUTES A NUISANCE? A new California Court of Appeals case took up that issue. In Chase vs. Wizmann, the parties lived next to each other in the Mt. Olympus area of Los Angeles for about 25 years. Wizmann remodeled his house and in the process moved the pool equipment to the boundary fence that Wizmann shares with Chase. The pool motor and HVAC equipment is close to the Chase bedroom window.
Chase sued for declaring Wizmann’s use of the property to be a nuisance. Wizmann defended by claiming that the noise level was less than that proscribed by the City of Los Angeles, and thus could not be declared a nuisance. Wizmann operated his property as an AIRBNB/short term rental house, thus the Wizmann tenants tended to keep the pool equipment and HVAC operating almost 24 hours a day.
The Court of appeals determined that Chase was more likely than Wizmann to win at trial, and the harm of the noise would be irreparable. On the other hand, Wizmann’s only loss would be the cost of moving the equipment to the other side of the property – something the Court could correct at the eventual trial. The Court further held that just because the dB level of the machinery was below the Los Angeles Municipal Code level, doesn’t mean that it is not a nuisance, because the ordinance does not specifically allow for equipment to be run at less than the set dB level. In other words, just because the noise level of your equipment is less than that set by the City, doesn’t mean you are immune from the provisions of nuisance. Because the combination of the HVAC compressor and the pool pump created, in the Court’s belief, a substantial interference with the right Chase has to use his property, the Court issued the injunction. Chase has to move the equipment. Moral: When creating noise at your property, even if with a building permit, consider the effect it has on the neighbor and what you might do to lessen that noise level, even if it is a bit more expensive for you. The noise was controllable by Wizmann.

12/29/2021

NEW LAW – EMOTIONAL SUPPORT ANIMALS AND HOW HEALTH CARE PRACTITIONERS PROVIDE DOCUMENTATION. This law closes what was a gigantic loophole in how tenants and condo residents obtained documentation relating to Emotional Support Animals (ESA). It does not change the underlying federal or state law regarding reasonable accommodations in regard to housing, just what is required in order to obtain the requisite documents. The new law also requires that a person who utilizes an emotional support dog to give notice that the dog does not have the special training required to be a guide, signal or service dog. The law also requires a person that provides a certificate, tag, vest, leash or harness for an emotional support dog to give notice to the buyer of such equipment that the material does not automatically entitle an emotional support dog to the rights and privileges afforded to a guide, signal or service dog. The other important component is that a health care practitioner is now PROHIBITED from providing documentation relating to an individual’s need for an emotional support dog UNLESS the health care practitioner complies with specified requirements: 1. The practitioner MUST hold a valid license, 2. There must be a client-provider relationship with the individual for at least 30 days prior to providing the documentation, and 3. The practitioner MUST COMPLETE a clinical evaluation of the individual regarding the need for an emotional support dog. This law DOES NOT restrict or change existing federal and state law related to a person’s rights for reasonable accommodation and equal access to housing. REF: Health and Safety Code §§ 122317 et seq.

12/27/2021

NEW LAW (Concerning the Partition or court ordered sale of Real Property). Commencing in January 2022, the Uniform Partition of Heirs Property Act goes into effect. The law grants co-tenants of "heirs property" the first option to buy the property at an appraised price in Court action forcing the sale of the real estate. This is a favorable change from current law which does not have such a provision. For the purpose of the law, “Heirs property” is property that is in part owned by or acquired from related persons through an inheritance or gift. To determine whether partition will be by this process or by sale, courts are mandated to weigh non-economic factors, such as the consequences of eviction and whether the property has any historic value. Another favorable feature of the law is that if a sale is ordered, it must typically be an open-market sale through a brokerage, as opposed to a court ordered auction. This will save the parties many thousands of dollars. REF: Code of Civil Procedure §§ 872.020 and 874.311 through 874.323.

12/21/2021

Condominiums and short term rentals. Can the owner of a condominium continue to rent their property as a short term rental, even after the board of directors passes a prohibition against search rentals? That is the question addressed in the case of Brown vs. Montage. Nancie Brown owned a condominium in the Montage at Mission Hills and had rented it out as a short term rental. After such use, the Montage passed a new set of C.C. & R's which prohibited such use. Brown argued that she was exempt under Civil Code § 4740 (a) which provides that an owner of a property in a common interest development shall not be subject to a provision in a governing document or an amendment to a governing document that prohibits the rental or leasing of the owners property unless that document was effective prior to the date the owner acquired title. The Montage argued that she is bound by the restriction, effective the date that the rental of the most current tenant expired since her use was “commercial” in nature. The Court of Appeals ruled in favor of Brown. “In enacting section 4740, the legislature declared that the rights of condominium owners to rent or lease their properties as those rights existed at the time they acquired their property should be protected. it is common for condominium owners to rent their property as short term rentals. Boards of directors are taking steps to limit this use. However, for as long as an owner is on title, that unit can continue to be used as a short term rental.

04/26/2021

Can a tenant be evicted based on a three-day notice to perform or quit which is served by a prior landlord of the property? Property owner A served a tenant a three-day notice to perform or quit on a tenant. The tenant failed to correct the violation or vacate the property within the three day period. The Property Owner A then sold the property to the Lees. The Lees filed an unlawful detainer (UD) action against Kotyluk to evict him based on their failure to comply with the three-day notice to perform or quit served by the original owner. (the three day notice required the tenant to stop selling ma*****na without a license). Kotyluk claimed the UD action filed by Lee is invalid since Lee did not have the right to possession of the property when the three-day notice to perform or quit was served. Lee claimed that the UD action was valid since the original owner filed a three-day notice to perform or quit and the tenant failed to cure the breach or quit the property within the three days which terminated Kotyluk’s right to possession. The California court of appeals in Lee vs. Kotyluk ruled that the three-day notice to perform or quit served on the tenant by the original owner was a valid basis for the new owner’s UD action since the tenant’s failure to cure the breach or quit the property within the notice period terminated Kotyluk’s right to remain in possession. This is true irrespective as to who is the landlord.

04/26/2021

More on Prescriptive Easements. A property owner of a residential apartment building allowed its tenants non exclusively use a portion of a neighbor’s property for access, parking, garbage removal, and as a garden. After more than five years of continuous use of the neighbor’s property it is acquired by Husain, who was aware during his purchase of the continuous use of the property by the neighbor. The buyer now seeks to revoke the use of the property by the adjacent owner and their tenants. Husain claims the adjacent owner (Bank) and its tenants can be barred from using the property since their use of the Bank’s property was permissive and revocable at any time. The Bank claims that Husain may not revoke the right to use the Husain property as it is a prescriptive easement since the owner and tenants openly, notoriously, and continuously used portions of the neighboring property for more than five years. The California appellate court in Husain vs. Cal. Pac. Bank ruled that the Bank does indeed hold a prescriptive easement over the portion of the Husain property since the Bank and its tenants’ use of the Husain property was open, notorious, and continuous for a period of more than five years. NOTE: As mentioned in prior posts, no prescriptive easement can be exclusive. Most of the calls I get regarding easements are boundary line disputes, which generally cannot result in a prescriptive right, because those rights can never be exclusive.

04/26/2021

Eviction of Medically Disabled Individuals: Three tenants occupy a residential property under a lease agreement. One of the tenants has a medical disability requiring in-person care. On expiration of the lease term, the tenants continue occupying the property on a month-to-month rental basis. The landlord serves a Notice to Quit to terminate the occupancy. The tenants request an extension to accommodate the disabled tenant and present the landlord with a physician’s letter stating the disabled tenant is unable to travel on a long trip, posing an inconvenience. The landlord rejects the extension request, the tenants do not vacate on expiration of the notice, and the landlord files an unlawful detainer (UD) action to recover possession from the tenants. The tenants claim they cannot be evicted since the landlord’s Notice to Quit violates the Fair Housing Amendments Act of 1988 (FHAA), by discriminating against a disabled tenant while knowing it was inconvenient for the disabled tenant to travel. The landlord claims the tenants unlawfully detained the property since the tenant’s right to possession terminated on expiration of the Notice to Quit which is not an FHAA violation as the tenants failed to show the requested accommodation is necessary to the tenant’s medical condition. The Court of Appeals in Howard vs. HMK Holdings ruled that the unlawful detainer action is proper based on the Notice to Quit and the tenants are to be evicted since the tenants failed to show sufficient evidence an extension of their occupancy was necessary for the tenant’s health and safety as required under an FHAA claim. I suppose the result might have been different if the tenant presented evidence that staying was “necessary for the tenant’s health and safety,” but that was not done.

02/23/2021

Can one spouse who owns real property as joint tenants with his/her spouse sign and have recorded an enforceable Deed of Trust? In Trenk v. Soheili, a married couple holds title to their residence in Granada Hills as joint tenants. The husband settled a business dispute that was his alone by agreeing to pay a creditor (Trenk) a $200,000 evidenced by a promissory note in favor of Trenk and which was also secured by a trust deed against the Granada Hills home. The trust deed was not signed by the wife. The husband defaulted on the Note, and Trenk then began processing the foreclosure of the home (power of sale). Maryam (wife) sued Trenk to clear title to the house claiming the trust deed held by Trenk is unenforceable since one spouse did not sign the trust deed. The California Court of Appeals ruled that the trust deed is unenforceable and thus cancelled as voidable since the property held by a couple vested as joint tenants is community property requiring both spouses to execute the trust deed to encumber the property. The decision is in line with two California statutes in the Family Code, creating a presumption that property acquired by a married couple after 1975 are community assets which can only be encumbered or sold with the consent of both spouses, irrespective of the fact that the Granada Hills home is held in joint tenancy rather than Community Property.

02/16/2021

Is a commercial landlord liable to its tenant for injuries sustained by the tenant due to dangerous conditions within the premises? In Garcia vs. D/AQ Corp., a commercial tenant entered into a lease agreement with the landlord which lease contains an exculpatory (landlord not liable for injuries or damages) and a hold harmless clause. However, the staircase on the premises violated local building codes. The landlord did not inspect the premises for building code violations prior to leasing it, and the tenant makes no communication to the landlord about the condition of the staircase during the lease negotiations or afterwards. The tenant falls down the staircase, sustaining injuries. The tenant sued the landlord seeking money losses and claiming the landlord was negligent since building code violations existed on the premises creating the dangerous condition which caused the tenant to be injured. The defense was that the exculpatory clause in the lease agreement bars the tenant from recovery since the landlord was not on notice that a dangerous condition existed. The California appellate court ruled that the landlord is not liable for the tenant’s injuries caused by code violations on the leased premise since the landlord had no knowledge of the dangerous condition and the exculpatory clause in the lease agreement shielded the landlord from these liabilities. Moral of the Story: Tenants, do your homework and notify the landlord of defective or dangerous conditions at the property before you sign the lease. The Hold Harmless and the Exculpatory Clauses will bar you from suing your landlord. The other moral is that this is not applicable to residential leasing.

02/16/2021

Say “Hello” to California’s new Homestead Exemption Law: Until 2021, California had a pathetic and confusing scheme for determining the amount of Homestead Exemption a homeowner could claim in the event of a Judgment against him/her. Starting this year, that changed. Welcome Section 704.730 of California’s Civil Code. The new Homestead Exemption in this State is the GREATER OF: (1) The countywide median sale price for a single-family home in the calendar year prior to the calendar year in which the judgment debtor claims the exemption, not to exceed six hundred thousand dollars ($600,000), OR; (2) Three hundred thousand dollars ($300,000). What does that mean in Los Angeles and Orange County in which home sale medians are over $700,000? Simply, in a county such as LA or Orange, your homestead exemption is probably going to be $600,000.00. In a less expensive county, closer to the $300,000 amount. The other important feature of the new law is that the homestead amount will be adjusted each year based on the Consumer Price Index. Attorneys who have generally not bothered with suggesting or advising clients to claim this exemption should re-think that advise based on the dramatic increase in the homestead exemption amount.

08/24/2020

RENT CONTROL: In California, single family residences (SFR) are exempt from rent control UNLESS……… In the case of Owens vs. City of Oakland Housing, the owner of a single family residence rented individual rooms to tenants at a rate that was higher than would have been allowed under the City’s Rent Control Ordinance. A tenant filed a complaint, the City investigated, and determined that because the SFR became a multi family rental unit when the rooms were separately rented, the rent control ordinance applied. The owner appealed, and the Court of Appeals affirmed. Because the owner elected to separate rooms to separate dwellers within the SFR, the Ordinance applied to each of the rooms, individually. The Court of Appeals took guidance not from the exemption of SFR’s from the Ordinance, but rather from the way the owner of the Property used the SFR (meaning that if you rent to separate tenants instead of renting the whole property to one tenant, you might be subject to rent control guidelines.

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