Foreclosure by Power of Sale

Foreclosure by power of sale may be preferable

California allows foreclosure by the power of sale which is generally a more expedient way of foreclosing on a property, when compared with foreclosure by judicial sale. Foreclosure by power of sale involves the sale of the mortgaged property by the mortgage holder (usually a bank or other lender), rather than a sale supervised by the court. As it reduces the time spent in selling a foreclosed property considerably, foreclosure by power of sale may be preferable.

The majority of states allow foreclosure by power of sale. After the sale, proceeds go first to the mortgage holder. If there is any money left over, it will go to those who are holding liens on the property and then to the borrowers. Foreclosure by the power of sale accomplishes the same thing as a judicial sale.

When a “power-of-sale” clause is included in a deed of trust or mortgage, the borrower pre-authorizes the sale of the property to pay off the balance on a loan if the borrower defaults (fails to make the loan payment when due).

The power given to sell the property is generally given to the trustee who acts on behalf of the beneficiary (lender) by recording and sending Notice of Default and Notice of Sale.

However, there are some legal questions associated with this method of foreclosure.

Foreclosure when the mortgage holder is a government entity

Some state “power of sale” laws have resulted in questions of constitutionality. It has been argued in several cases that foreclosure by power of sale legislation fails to comply with the notice and hearing requirements of the Fourteenth Amendment of the U. S. Constitution. Courts have consistently rejected this theory when it comes to private foreclosure actions when there is no public official conducting the foreclosure sale. With no public official present, there is no state action necessary to invoke the terms of the Fourteenth Amendment.

However, there have been rulings indicating that if the mortgage holder is a government entity or if a public official conducts the foreclosure sale, the Fourteenth Amendment might be invoked and stricter notice requirements might apply. The case law on this issue is so far unsettled.

DiJulio Law Group
http://www.dijuliolawgroup.com

Investing in the United States: The E-2 Business Visa

Establishing a New Business in America

Entrepreneurs from other countries wishing to establish a new business in America, or purchase an existing one, may qualify for an investor visa, also known as an E-2 visa. The Treaty Investor Visa (nonimmigrant E-2 classification) is intended for nationals of a foreign country with which a qualifying Treaty of friendship, commerce, navigation, or a similar agreement exists with the United States. In order to develop and direct their investments with the US, nationals (individual persons or companies) of countries with such treaties with the United States can obtain visas to work in this country.

These non-immigrant visas allow foreign investors and employees to live and work in the U.S., or foreign companies with U.S. subsidiaries to send employees to work here. The DiJulio Law Group has been assisting clients for over 35 years in addressing a wide range of legal matters, including their immigration and business needs.

Guidelines for an E-2 Business Visa

As with any type of visa, there are guidelines that apply for an E-2 visa. The U.S. Department of State website lists many, but the following information provides highlights of those guidelines.

Generally, a citizen of a foreign country who wishes to enter the United States must first obtain a visa, either a non-immigrant visa for temporary stay, or an immigrant visa for permanent residence. Treaty Trader (E-1) and Treaty Investor (E-2) visas are for citizens of countries with which the United States maintains treaties of commerce and navigation.

You must be coming to the United States to engage in substantial trade, including trade in services or technology, in qualifying activities, principally between the United States and the treaty country; or develop and direct the operations of an enterprise in which you have invested a substantial amount of capital.

Examples of types of enterprises that constitute trade under E visa provisions include international banking, insurance, transportation, communications, or tourism.

You must be coming to the United States to develop and direct the enterprise. If you are not the principal investor, you must be considered an essential employee, employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify.

It must generate significantly more income than just to provide a living to you and family, or it must have a significant economic impact in the United States.

The investment must be a real operating enterprise, an active commercial or entrepreneurial undertaking. A paper organization, speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment.

DiJulio Law Group
http://www.dijuliolawgroup.com

Fences and Boundary Line Disputes

Fences are frequent sources of boundary line disputes

Fences are frequent sources of boundary line disagreements and disputes. A business or a homeowner decides to erect a fence without first determining where the actual property line lies. His neighbor then learns that the fence was not placed on the actual boundary line, but on his property. The neighbor might decide that the fence being on his property (encroachment) doesn’t bother him and does nothing about it. This approach has the advantage of preserving good will between the neighbors. However, if either owner decides to sell their property, they will need to disclose the encroachment to any potential buyers so that they can consider the issue as part of their purchasing decision.

Equal Contributions to Boundary Line Fence Maintenance

California code requires adjacent landowners equally contribute to maintain walls and fences between them, unless one of the two landowners chooses to let the remaining sides of his property remain unfenced. However, if that landowner later fences in his property, he will be responsible for payment of his proportional share of the original value of the common fence.

Spite Fences and boundary line disputes

What have become known as “spite fences” are also regulated by code. They are defined as “a fence or other structure in the nature of a fence unnecessarily exceeding 10 feet in height maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property is a private nuisance.” Trees and hedges that are planted in a row to form a perimeter may be deemed a fence. The law provides strong remedies, including injunctions, against “spite fences.”

Encroachment

A common question posed to real estate attorneys are in regard to a dispute with an adjoining landowner involving an encroachment. An example of encroachment would be when another person puts up a structure like a fence that intrudes on your property. This issue might come up if when one of your neighbors builds a structure that is partially on your property. Typically, the courts will apply one of three legal theories to resolve such a case. They are the doctrine of adverse possession or prescriptive easements, the agreed boundaries doctrine, or the relative hardship doctrine. Which method that would be most applicable in your particular situation is best determined by a qualified real estate attorney.

DiJulio Law Group
http://www.dijuliolawgroup.com

Easements and Property Dispute Resolution

The Right to Limited Use of Another’s Property

The use of easements is common, often laid out when a subdivision was created, which allows another party the right to use a portion of that property. Common examples of easements involve public utility or power lines, phone lines, underground pipes, and storm drains. An easement owner is entitled to a limited use or enjoyment of another’s land. A prescriptive easement is an easement that is earned by regular use. They are not purchased, negotiated, or granted. A prescriptive easement may offer a solution to a boundary dispute.

If you find yourself in the position of needing an easement or disputing an easement, DiJulio Law Group can assist you.

There are various types of easements used to address the many property access problems that arise.

Prescriptive Easements

A prescriptive easements may be considered as the acquisition of an easement by adverse possession or squatter’s rights. For example, if a property owner built a fence ten years ago and the owner of the adjoining property has now determined that the fence is several feet past the actual boundary line and decides to contest, a prescriptive easement may be sought that allows the fence to remain. A prescriptive easement is simply a right to use property, the user does not gain title to the land. A prescriptive easement involves only limited use of a property, for example a pathway or driveway. Payment of property taxes is not required.

Other Types of Easements

An easement in gross involves only property, and the rights of other owners are not considered. For example, a public utility line easement would be an easement in gross and would be recorded in the public records. If for any reason the title insurer fails to disclose a properly recorded easement in gross, and which then causes a problem later, then the title insurer must either pay you the diminished value of your property, or have the easement moved.

An example of an easement appurtenant would be an easement allowing you to drive over your neighbor’s property to in order to reach your property. This situation occurs in so-called “flagpole” lots that have no direct access to public roads. To create an easement appurtenant by necessity, the owner of the landlocked parcel must be able to prove in court that there was common ownership with one of the joining parcels that has public access.

Easements come in many forms, from view easements to implied easements to easements created by deed. Common concerns with existing easements include determining if there are options to have it removed. Seeking a prescriptive easement to resolve a boundary dispute is another common concern. All easement disputes, concerns, or questions are best dealt with by a qualified real estate and property law attorney.

DiJulio Law Group
http://www.dijuliolawgroup.com

Construction Claims: Cost Overruns and Delay Claims

Construction contract bidding is a complex process

Contract bidding is a complex process that requires owners and contractors to provide detailed information about a project. It is necessary in order to reasonably estimate the costs associated with building projects. Though detailed information and careful consideration may have been involved in the bidding process, inevitable changes made after contracts have been signed can result in significant differences between project bids and project costs.

Circumstances unforeseen prior to the start of a project can have significant negative financial impact on contractors, sub-contractors, and owners. At the DiJulio Law Group, we have an in-depth understanding of complex issues associated with documenting, proving and recovering the costs associated with changes to a contractor’s performance resulting from a variety of factors.

Construction cost overruns

Most construction projects benefit from a modicum of planning, but circumstances occur that cause some projects to go astray which make cost overruns inevitable. Contractors and sub-contractors must stay ahead of the project by acknowledging problems immediately and providing solutions. Informing owners is in the best interests of contractors as well.

A useful process in cost management of a project is to compare the budgeted/estimated project compares with the completed actual project. Reasons for cost overruns can quickly be determined by this method. Once the project is completely finished, and the project costs are paid, a project completion meeting with significant individuals of the project team to discuss what went right and what went wrong is highly recommended.

Our experience includes all types of construction cost overrun claims, such as impact and delay claims, changed conditions or differing site conditions claims, and defective specification claims. We use an well informed, in depth approach in resolving our clients’ disputes.

Construction delay claims

As a construction delays can create major problems and become very costly, the schedule is a critical part of any construction project. Careful scheduling can help protect the interests of contractors and property owners, but there may be unforeseen circumstances or events that give rise to construction delay issues.

These delay issues may cause any number of construction disputes. Effectively managing these disputes often requires seasoned legal judgment. Such judgment comes as a result of having protected the interests of contractors, sub-contractors, and owners with respect to a wide variety of delay-related issue such as weather, concurrent, or owner-caused delays.

DiJulio Law Group
http://www.dijuliolawgroup.com

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