Real Estate
San Diego Real Estate Lawyer FAQ
Should I have a lawyer when I sell/buy a home?
Generally, an attorney is not necessary in a standard residential purchase sale agreement. It is advisable, though, to consult an attorney, to make sure all contingencies are met and conditions covered.
Do I really need an inspection?
Yes. The pre-close of escrow inspection is one of the most important elements to buying a home. Also, it is important when you are selling one as well. You never want to go into a purchase or sale without ALL the relevant information about the home. Often times, a failure to inspect and uncover certain defects can trigger liability.
Can my landlord evict me for any reason?
No. While landlords have some leeway in evicting a tenant they cannot evict for an illegal reason. Some illegal and/or pretextual reasons for eviction include:
a. Eviction after complaints about habitability
b. Some evictions in a rent control district
c. Some evictions from federally funded housing
d. Eviction after exercise of legally protected act
I bought a home and the seller misrepresented the condition. What can I do?
There are several options. First, you may be able to rescind the contract. Rescission terminates further liability and restores the parties to their former positions by requiring each to return whatever consideration was received.
Second, you may be able to sue for damages. These damages may include out of pocket expenses, lost profits, money for your inconvenience and, in limited cases, punitive damages.
I think my neighbor is using my property. They say the land belongs to them. What can I do?
This is a relatively common scenario. If a mistaken survey has led to the dispute, the true owner of the property may initiate a quite title action against the neighbor. The long-settled, definitive purpose of a quiet title action is to resolve adverse claims to property; the ultimate fact to be found is the ownership of the property or an interest in it.
I own a piece of property with someone else. We cannot manage the property together anymore. Can I get out of the relationship?
Yes, you can file what is known as a partition action. Partition is the division of real or personal property between or among two or more co-owners, such as joint tenants or tenants in common. In a partition, there is no change of title between the tenants in common—it is simply dividing up what the parties already own. After the partition, each tenant in common has exactly the same proportional interest in the property that he or she had before partition. The only difference is that now his or her interest is in severalty, whereas before it was in common.
What does the law require of my real estate agent?
The real estate broker becomes a fiduciary in relations with the client and assumes the duties, obligations, and high standards of good faith imposed on a person in a fiduciary relationship. A real estate agent has the same obligation of undivided
service and loyalty that the law imposes on a trustee in favor of a beneficiary and as such is required to give diligent and faithful service. The real estate broker must at all times act toward the client in the highest good faith. As a fiduciary, the agent must disclose to the principal all information that may affect the client’s affairs or decisions and is required to disgorge any secret profits derived from the agency.
What duties does the other side's agent owe to me?
While acting in an agency capacity for one party in a transaction, the real estate agent also is an independent contractor with independent duties and liabilities to all other parties. In reference to real estate agents, the law has been extended to impose a high degree of care on the licensee toward third persons because of the licensee's knowledge and training and the public's general reliance on the truth and honesty of licensees. The agent owes a duty of care not to cause injury to third persons and will be liable to third persons for negligent conduct. The agent also is obligated to avoid fraudulent conduct and to disclose material facts to all parties, whether or not there is an agency relationship.
The theme that is constantly found beneath the surface of almost every breach of duty by a broker is the compensation system that is generally accepted in the industry. Brokers work on a contingency basis; no matter how hard they work and how honest and forthright they act in the transaction, they are not paid if the transaction is not concluded. The average person is not willing to work hard, diligently, and honestly when there will be no payment for his or her efforts. In some cases, the broker's financial circumstances require that compensation be earned in order to meet personal financial needs.
I think the seller’s real estate agent tried to cover-up or conceal certain things about the home I bought? What should I do?
The seller's real estate agent is under the same affirmative duty as the client to disclose facts materially affecting the value or desirability of the property that he or she knows and that he or she knows are not known to, or within the diligent attention and observation of, the buyer.
An "as is" clause or some other exculpatory provision in the sales contract does not protect the broker from liability for failing to disclose a material fact.
My agent advised me to sign certain documents that I didn’t think were in my best interest. Is my agent liable for any damage?
Your agent or broker may be engaged in the unauthorized practice of law.
The standard forms in common use contain nondiscretionary printed provisions that are not drafted by the buyer, seller, or broker, and also printed provisions that require the exercise of discretion, such as the standard form of liquidated damages and arbitration clauses. Also, the critical portion of the sale relating to the terms of the transaction requires drafting in the blank portions of the form. Such matters as conditions precedent to the sale, financing of the purchase, amount and terms of the financing taken back by the seller, occupancy by the buyer or seller before or after the close of escrow, resale of the buyer's other property, physical condition and/or inspection of the property, subordination, partial release, etc., are all drafted by someone in concluding a legal contract. In practice, the broker accomplishes this drafting and often suggests the alternatives and provides recommendations or "advice" to one or both parties.
Call our office today to see if you have case against your real estate broker or agent.
Should I have a lawyer when I sell/buy a home?
Generally, an attorney is not necessary in a standard residential purchase sale agreement. It is advisable, though, to consult an attorney, to make sure all contingencies are met and conditions covered.
Do I really need an inspection?
Yes. The pre-close of escrow inspection is one of the most important elements to buying a home. Also, it is important when you are selling one as well. You never want to go into a purchase or sale without ALL the relevant information about the home. Often times, a failure to inspect and uncover certain defects can trigger liability.
Can my landlord evict me for any reason?
No. While landlords have some leeway in evicting a tenant they cannot evict for an illegal reason. Some illegal and/or pretextual reasons for eviction include:
a. Eviction after complaints about habitability
b. Some evictions in a rent control district
c. Some evictions from federally funded housing
d. Eviction after exercise of legally protected act
I bought a home and the seller misrepresented the condition. What can I do?
There are several options. First, you may be able to rescind the contract. Rescission terminates further liability and restores the parties to their former positions by requiring each to return whatever consideration was received.
Second, you may be able to sue for damages. These damages may include out of pocket expenses, lost profits, money for your inconvenience and, in limited cases, punitive damages.
I think my neighbor is using my property. They say the land belongs to them. What can I do?
This is a relatively common scenario. If a mistaken survey has led to the dispute, the true owner of the property may initiate a quite title action against the neighbor. The long-settled, definitive purpose of a quiet title action is to resolve adverse claims to property; the ultimate fact to be found is the ownership of the property or an interest in it.
I own a piece of property with someone else. We cannot manage the property together anymore. Can I get out of the relationship?
Yes, you can file what is known as a partition action. Partition is the division of real or personal property between or among two or more co-owners, such as joint tenants or tenants in common. In a partition, there is no change of title between the tenants in common—it is simply dividing up what the parties already own. After the partition, each tenant in common has exactly the same proportional interest in the property that he or she had before partition. The only difference is that now his or her interest is in severalty, whereas before it was in common.
What does the law require of my real estate agent?
The real estate broker becomes a fiduciary in relations with the client and assumes the duties, obligations, and high standards of good faith imposed on a person in a fiduciary relationship. A real estate agent has the same obligation of undivided
service and loyalty that the law imposes on a trustee in favor of a beneficiary and as such is required to give diligent and faithful service. The real estate broker must at all times act toward the client in the highest good faith. As a fiduciary, the agent must disclose to the principal all information that may affect the client’s affairs or decisions and is required to disgorge any secret profits derived from the agency.
What duties does the other side's agent owe to me?
While acting in an agency capacity for one party in a transaction, the real estate agent also is an independent contractor with independent duties and liabilities to all other parties. In reference to real estate agents, the law has been extended to impose a high degree of care on the licensee toward third persons because of the licensee's knowledge and training and the public's general reliance on the truth and honesty of licensees. The agent owes a duty of care not to cause injury to third persons and will be liable to third persons for negligent conduct. The agent also is obligated to avoid fraudulent conduct and to disclose material facts to all parties, whether or not there is an agency relationship.
The theme that is constantly found beneath the surface of almost every breach of duty by a broker is the compensation system that is generally accepted in the industry. Brokers work on a contingency basis; no matter how hard they work and how honest and forthright they act in the transaction, they are not paid if the transaction is not concluded. The average person is not willing to work hard, diligently, and honestly when there will be no payment for his or her efforts. In some cases, the broker's financial circumstances require that compensation be earned in order to meet personal financial needs.
I think the seller’s real estate agent tried to cover-up or conceal certain things about the home I bought? What should I do?
The seller's real estate agent is under the same affirmative duty as the client to disclose facts materially affecting the value or desirability of the property that he or she knows and that he or she knows are not known to, or within the diligent attention and observation of, the buyer.
An "as is" clause or some other exculpatory provision in the sales contract does not protect the broker from liability for failing to disclose a material fact.
My agent advised me to sign certain documents that I didn’t think were in my best interest. Is my agent liable for any damage?
Your agent or broker may be engaged in the unauthorized practice of law.
The standard forms in common use contain nondiscretionary printed provisions that are not drafted by the buyer, seller, or broker, and also printed provisions that require the exercise of discretion, such as the standard form of liquidated damages and arbitration clauses. Also, the critical portion of the sale relating to the terms of the transaction requires drafting in the blank portions of the form. Such matters as conditions precedent to the sale, financing of the purchase, amount and terms of the financing taken back by the seller, occupancy by the buyer or seller before or after the close of escrow, resale of the buyer's other property, physical condition and/or inspection of the property, subordination, partial release, etc., are all drafted by someone in concluding a legal contract. In practice, the broker accomplishes this drafting and often suggests the alternatives and provides recommendations or "advice" to one or both parties.
Call our office today to see if you have case against your real estate broker or agent.