Divorce and Property

Mani con chiave sfondo azzurroMum is the word- sometimes, unfortunately. That was the case for one woman, who ran into multiple questions regarding the condo she and her hopefully soon to be ex-husband share. The catch, however, is that the loan for the condo is carried under his mother’s name.

In detail, she and her husband have lived together in this condo since 1999. Her name is not on the title or the loan of the condo, which is carried, again, by her husband’s mother. The couple make the house payments and claim them on their taxes together. They both also pay the property taxes. She wants to know how she can ensure that she gets “her half” in the property division of the condo property after they divorce.

Let’s be blunt. Based on what she’s told us, there’s probably no way to “make sure” she gets “her half” of the condo. It sounds like the husband’s mother bought the home for him, and left her daughter-in-law intentionally off of the deal. If that’s true, “her half” doesn’t exist so there will be no property division. What she can do: talk to a lawyer and give him or her all the facts she knows. She should bring a copy of the deed with her. If she doesn’t have a copy of the deed, she can get one at the recorder’s office. I expect the only way to create a half interest in the condo in her favor would be for the husband to deed half of it to her. She might ask him to do so and see what happens- it couldn’t hurt if that’s the only option.

For more information on property in divorce, please visit our website: http://stanprowse.com/property-division-in-divorce



Landlord Tenant Law – Tenants Rights

Tenancy agreementReconciliation. Making amends. Getting back together. For some divorced couples, it isn’t just a laughable notion or a vastly unlikely fantasy. For some, it can actually happen. This seemed to be the future for one potential client, a woman who reports she and her ex-husband have agreed that their parting of ways was a mistake and that they’re currently trying to get back together. However, an outside force is blocking the couple and their son from coming together under the same roof. What is this outside force? The landlord of the ex-husband’s apartment.

The woman states that the landlord “will not allow me in or on the lease because they don’t want a divorced couple living together. They think it will cause domestic violence which was never the case or ever happened.” She has been sneaking into the apartment at night to see her family, otherwise, the landlord will evict her ex-husband and son. Her question is this: can the landlord really refuse to allow her to move back in just because she and her husband are divorced, and are trying to reconcile?

If the lease agreement is in her ex-husband’s name and she is not listed as an approved occupant, the landlord could terminate the lease if her ex-husband lets her stay there. However, simply not wanting a divorced couple to live there is by itself probably a violation (at least arguably) of some California fair housing laws. She should find a lawyer that handles landlord-tenant law, specializing in representing tenants rights, and see how best to tackle this situation. We all know it often takes a court case to split up, but who knew it could take another to get back together?

For more on landlord and tenant related real estate law, please visit our website:  http://stanprowse.com/landlord-tenant-law



Property and Divorce

concept of section of property after divorce.

A woman reports that when she and her ex-husband divorced, they agreed to let their family home foreclose. Since then, he has filed for bankruptcy to delay the foreclosure, he began once again to pay the mortgage, and has organized for a friend to become a renter. This woman asks us if she is entitled to half of the rent he receives from the tenant. She states that she was indifferent when she knew that the money was going towards a community debt, but now that she knows it is not she believes she deserves a share of the profit.

Assuming that the property is still in both names, this woman is entitled to half the rent her ex is receiving. We told her it sounds as though she should take him to small claims court, which is a local court where claims for small sums of money can be tried and resolved quickly and inexpensively without legal attorneys. It also sounds as if the home in this situation is not an adjudicated asset (or their judgement doesn’t say who gets it). In that case, if it ever becomes worth anything, she might want to go back to divorce court and ask for it to be sold and the proceeds divided. If the house is in fact an adjudicated asset, there is a possibility that the small claims court has no jurisdiction to deal with who gets the rent, and that a small claims court judge might refuse to hear her case and send the pair back to divorce court. In either case, she should consult with an attorney to develop a plan of action for receiving the profit she is entitled to.

For more information on real estate and property in divorce, please visit our website: http://stanprowse.com/property-division-in-divorce


Lease Agreements: What Happens in Divorce?

Mani con chiave sfondo azzurroA man recently approached us with a complicated situation. Though he and his wife mutually agreed that divorce was in their family’s best interest, her reaction was negative to say the least when he served her with divorce papers.  She promptly threatened to give 30 day notice to dissolve the lease agreement on the condo the couple rent, which, problematically for the husband, is leased only in her name. After those 30 days, she plans to move to another town, into an apartment where she has already cosigned a lease with her new boyfriend. To add fuel to the fire, the couple share a 12 year old daughter who wishes to remain with the father because she is afraid of her mother’s boyfriend. Of course, the mother wants custody of the daughter. This man states he can’t afford the rent on his own, and he believes his wife is trying to put him on the streets. His questions: Can she just throw him out? Can she just end the lease?

The leasehold interest, although hers as far as the landlord is concerned, is community property, so it therefore belongs to both the wife and the husband. Legally, her ability to evict him as a subtenant is exceedingly dismal. If she proposes to stop paying the rent and move out herself, that might be prohibited under the automatic restraining orders printed on the second page of his petition, because she’d be disposing of community property without his consent. However, we of course had to give him the honest truth about this situation. This type of discrepancy is highly technical and academic; dealing with it in a divorce case would be time consuming, and the result problematic. The reality is that if no one is paying the rent, he’ll have the landlord evicting him, no matter the status of his wife. The best thing for this man to do for himself and his daughter is to find a place to live that he can afford. That way, he isn’t dependent on the actions of his soon to be ex wife.

For more information on community property, as well as tenant protection, please visit their following respective pages on our website: http://stanprowse.com/community-property and http://stanprowse.com/real-estate-law/landlord-tenant-law


No Trespassing!

Tenant-15969785Busily micromanaging the residential rental market from Sacramento, our  legislators have made landlord-tenant law in California a minefield for landlords.  Here’s one mine you might not know about, but should if you’re an amateur landlord or thinking of becoming one.  Under what I’ll call the limited entry laws, you have no legal right to enter your property to see what condition it’s in without the tenant’s consent.

There are only three legal exceptions.  The first is entering to deal with a dire emergency, like fire or flood. The second is entering to make repairs.  The third is entering to show the property to prospective tenants.  Naturally no prior notice is required for the first, but prior notice is required for the second and third.  How to give prior notice is not left to chance.  Detailed requirements must be followed.

Now, how is the landlord supposed to know that he should enter legally to make required repairs if the tenant never tells the landlord that any repairs are required?  Apparently assuming that all renters are responsible and reliable, our legislators have failed to answer that question.  So, let’s say there is water leaking under the kitchen sink from the faucet, gradually destroying the cabinetry.  The tenant knows about the leak, but he doesn’t doesn’t care about the cabinetry.  He cares more about the inconvenience of having the landlord, the plumber, and the cabinet guy in the house, and he keeps his marijuana plants on the kitchen window sill.

Besides, the tenant knows his rights.  He’s already refused several requests by the landlord to inspect the place.  The tenant decides not to tell the landlord about the leak.  When he eventually departs, disappearing without a forwarding address, the landlord at long last discovers there were required repairs, but they are now ten times more extensive and costly than they might have been if landlords had a right to inspect and he had exercised it periodically.

We are not sure we can solve this problem legally.  I suggest to my landlord clients that they insert a provision in their leases stating that the landlord has the right to enter, after reasonable notice, to inspect the premises for the purpose of identifying required repairs, and that the tenant’s refusal to allow such inspection constitutes a default entitling the landlord to terminate the lease.  I also suggest a second provision containing a specific waiver by the tenant of any right under the limited entry laws to refuse entry for inspection only.

If you assume such provisions are in a lease and the tenant refuses entry after proper notice, the legality of the provisions would be tested in court.  Unfortunately the landlord  might not prevail. I suspect there is a high probability that the court would treat what I have called the limited entry laws as consumer protection laws.  In many cases, courts have ruled that it is against public policy to allow consumers to waive consumer protection laws intended to protect them.  This may be one of those cases.

To my mind the legislature has once again failed to consider the law of unintended consequences.  Their intention was undoubtedly to help tenants. However, making life more difficult for landlords forces landlords to toughen their standards for acceptable tenants.  Landlords conscious of a tenant’s power to prevent entry for inspection will not want to rent to anyone who looks as if he might exercise that power.  The net result may be to hurt people who need to rent, not to help them.

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Stan Prowse