Evictions from Two Perspectives

Unlawful detainer actions and evictions

Evictions are also referred to as unlawful detainer actions. These actions are the process through which a tenant can be removed from either residential or commercial property for non-payment of rent or other specific reasons defined under California landlord/tenant laws. Whether you are a property owner or a renter, the law provides procedures that guide resolution of eviction cases and protect both tenant’s and client’s rights.

Following Landlord Procedures in Evictions

A landlord can’t begin an eviction lawsuit without first legally terminating the tenancy. This means giving the tenant written notice, as specified in the state’s termination statute. If the tenant doesn’t move (or “reform” in some manner, such as paying the rent or removing the pet from the premises), landlords can then file a lawsuit to evict. Legally, these termination notices are called an unlawful detainer, or UD, lawsuit. Although terminology varies somewhat from state to state, there are typically three types of termination notices used by landlords to terminate a tenancy due to some type of tenant misbehavior. They are: pay rent or quit notices, cure or quit notices, unconditional quit notices.

If the tenant has not done anything wrong, landlords may usually use a 30-Day or 60-Day Notice to Vacate to end a month-to-month tenancy. Cities with rent control may not allow this. They require the landlord to prove a legally recognized reason for eviction (“just cause”) of tenants.

Tenants Rights in Evictions

If the tenant doesn’t voluntarily move out after the landlord has properly given the required notice to the tenant, the landlord can evict the tenant. In order to evict the tenant, the landlord must file an unlawful detainer lawsuit in superior court.

The court-administered eviction process assures the tenant of the right to a court hearing if the tenant believes that the landlord has no right to evict the tenant. The landlord must use this court process to evict the tenant; the landlord cannot use physical measures to force the tenant to move. For example, the landlord cannot remove or change door locks, cut off utilities such as water or electricity, block access to the property, remove the tenant’s property in order to carry out the eviction. The landlord must use the court procedures.

If the landlord uses unlawful methods to evict a tenant, the landlord may be subject to liability for the tenant’s damages, as well as penalties of up to $100 per day for the time that the landlord used the unlawful methods.

DiJulio Law Group

Reverse Mortgages: The Potential For Elder Financial Abuse

…the worst possible product for an elder

Reverse mortgages are becoming a high profile example of the many ways in which financial elder abuse can occur. Older spokesmen picked for their trustworthy demeanor appear in endless television commercials that attempt to sell a trusting senior a product that would benefit the mortgage broker greatly, but amounts to the worst possible product for the senior in the later stages in of life.

These reverse mortgage marketers are very adept and skilled in the methods of successful selling to seniors. For example, one well organized group of marketing advisors is telling the sellers of reverse mortgages , “These [senior] consumers understand that simply having a reverse mortgage offer mentioned on the AARP website and through most senior web links is an excellent way to gain trust from your [mortgage] candidates as most of the seniors that would respond to this ad have had some contact or consideration with the AARP”

By associating trustworthy sources with their products, these marketers are pushing their products with a pervasive intensity that is designed to create a need for a reverse mortgage and to break down whatever resistances the seniors may have.

…an elder without a place to live

Incurring the debt of a reverse mortgage may be acceptable as long as the senior can live in that home. If the senior finds that they have to move out of the home into assisted living or a nursing home, the mortgage becomes due. Now, there is the expense of paying the reverse mortgage off, as well incurring the high cost of the assisted living or nursing home care. A situation like this can leave an elder without a place to live.

In 2006, the California state legislature passed SB 1609 which protects seniors from elder financial abuse associated with reverse mortgages. First, it requires that seniors receive financial counseling from a HUD approved counselor before applying for a reverse mortgage. Second, it requires lenders to prepare loan documents in the language in which the reverse mortgage was negotiated. Finally, it prohibits lenders from requiring a borrower to purchase an annuity as a condition of the loan.

DiJulio Law Group

Residential Issues with Toxic Mold Contamination

Contamination Concerns for Health and Property Alike

Toxic mold exposure may be responsible for any number of health problems faced by tenants and homeowners alike. Mold may occur in older structures and well as new construction that utilized substandard materials such as imported drywall. As public awareness of the problem grows, more legislation is passed to address the problem.

Toxic mold exposure has many aspects, and a variety of lawsuits may result from a single mold contamination incident. Continued efforts on the part of the public and the government are needed to ensure that the mold problem is controlled and that responsible parties are held accountable for their liability in the problem.

Discovery of mold is of concern to tenants and property owners alike. For tenants, health considerations come first, but financial impact can also be great. For the property owner, resulting litigation and repair costs may lead to the biggest financial liability of mold contamination. Mold contamination is usually preventable, as are the health issues to which tenants become vulnerable.

Mold contamination are caused by microscopic fungi

Molds are microscopic fungi that need plant and animal matter in order to grow. Molds are found in outdoor environments as well as in homes, offices and residential structures. Molds can be observed in colors such as red, green, blue-green, brown and black. Most molds pose little or no health risks to people. Exposure to certain molds can cause severe health complications and even death for the young and persons with compromised immunity.

Residential structures are seemingly the source of most mold complaints from tenants and property owners alike.

Tenants suffer the highest percentage of health problems related to toxic mold. This may be due, in part, to older structures that are be poorly maintained or were built with substandard materials. Tenants can bring suits against landlords, building management, or ownership companies for any related health issues caused by the presence of toxic mold in their residences.

Property owners also file a substantial number of toxic mold suits. Their problems frequently stem from poor construction, water damage, and low quality building materials. Mold may go undetected for long periods of time and result in large and hard-to-fix problems. Property owners can bring suits against contractors, inspectors, material suppliers or any other party who may have contributed to toxic mold problems.

Legal Recourse in Toxic Mold Cases

Toxic mold cases require diligent and thorough legal counsel and finding a competent lawyer who will take on a toxic mold case is not always easy. Toxic mold legislation is still relatively new and some lawyers may not be familiar with pertinent laws. As both construction and health laws may be involved, lawyers versed in both areas would be desirable.

DiJulio Law Group

A Contractor’s Right to Lien Real Property

If the homeowner fails to pay the contractor

California law gives every contractor and supplier the right to lien real property for labor and material they’ve incorporated into a property, but for which they haven’t been paid. For example, let’s say a homeowner hires a contractor to build a deck and the contractor then hires a subcontractor with employees to pour concrete footings for the project. If the homeowner fails to pay the contractor, that contractor can put a lien on the homeowner’s house. This sequence of events is logical and fair.

Seemingly less logical is the subcontractor’s ability to place a lien on the homeowner’s property. This can happen in a situation where the homeowner pays the contractor, but that same contractor fails to pay the subcontractor for the concrete work related to the project. Under law, a general contractor is not only the employer of its subcontractors, but also the subcontractor’s employees. The employees of the subcontractor may then seek redress from the homeowner instead of the contractor. Since the homeowner’s house is collateral against all transactions, it’s his house that gets a lien put against it. This is true even if the homeowner paid someone else for that labor and materials.

A homeowner could be legally responsible to pay the contractor twice

In a worst case scenario, a homeowner could be legally responsible to pay twice for labor and supplies. This could happen if a homeowner were to hire and, under the terms of the agreement, pay a general contractor for a project. If and when the contractor fails to pay his crew or his suppliers, the homeowner could be legally obligated to pay for the supplies and wages himself. A foreclosure on a lien could force him to sell his house to pay the debt. The homeowner could, of course sue for recovery of the losses the contractor.

Contracts quite often employ the use of progress payments. Prime or general contractors must in turn make progress payments to subcontractors within 10 days of receipt of the funds from the home owner unless there is a written modification to this rule. If the prime contractor fails to pay, he may be subject to a levy.

DiJulio Law Group

Mediation of Construction Disputes

Mediation, An Alternative to Litigation and Arbitration

Mediation is an increasingly popular process for resolution of construction disputes for a variety of reasons. Resolving construction disputes with the usual methods of litigation and arbitration can prove costly in terms of time, money and emotional stress. Mediation provides an alternative for contractors, owners, developers, design professionals, and others who are dissatisfied with arbitration or litigation process as a means to resolve their construction disputes. In addition, experience has proven to many individuals that arbitration is not always a low-cost alternative to litigation in dispute resolution.

The process of mediation is one in which the mediator opens avenues of communication between the disputing parties. The mediator, without deciding the issues or imposing a solution on the parties, facilitates an understanding which allows the parties to reach a mutually agreeable resolution to their dispute. The mediator seeks to help the parties to reach an acceptable resolution based on their own ideas of what that resolution should be. A mediator does not pass judgment and so will not render an opinion as to the proper legal result of a particular dispute.

Mediation may be used in resolution of claims or conflicts between disputing parties at any point of the claim process. It can occur prior to the filing of a more formal court or arbitration process or prior to trial. Mediation allows for minimization of legal costs, a gain in control in the decision-making process, and a reduction of emotional stress. Business relationships suffer less damage because mediation provides the most rapid process for full and final resolution of disputes.

Mediation offers the possibility of a quick resolution

Disputes quite often have a negative impact on timely project completion, in addition to negative financial impact when costs accrue on a daily basis. The extensive legal preparation necessary for successful litigation tends to lead parties down a path that may not prove to be the most advantageous approach. Mediation gives disputing parties a voice in the process and also presents the possibility of a quick resolution, unlike waiting for court dates. If you find yourself in a construction dispute, mediation offers you and the other party, with or without your lawyers present, the opportunity to find solutions for problems more quickly than would happen in the courts or arbitration. In a fraction of the time and expense of litigation, mediation allows you and the other party with the help of an impartial mediator to gain control in the outcome and obtain a fair solution to your construction dispute.

DiJulio Law Group

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