CEB has published a new title – Real Property Ownership & Taxation. It is now available at the Alameda County Law Library in paper and digital form through the OnLAW database.
ACLL, due to a severe decrease in our revenue stream, is not able to buy many new paper titles these days. The decision was made to get this one in both formats as it deals with the types of California real property issues many of our patrons – lawyer and pro se – come to our library to research.
This desktop reference is for common questions and issues involving commercial and residential real property ownership.
Here are some of the topics covered:
Forms of ownership: how to take title to property
Property taxation and assessment during a transfer or sale
Income taxation of property sales, transfers, and exchanges
Estate planning considerations, including estate and gift taxation
Highlights of escrow and recordation of property transfers
Insuring title to property
Insuring property interests against loss and damage
How to appeal a tax assessment
Bankruptcy impact on title and sales
Impact of death on ownership and transfer of property
The chapter on California homestead law provides a detailed discussion of the legal issues of this area of real property law – one for which a resource can be difficult to find.
CEB Partner Program
Just a reminder – you can support the goals of the ACLL by participating in the CEB partner program when you place a new order for CEB products. Use CEB priority code – 9629A – when you place an order with Continuing Education of the Bar. ACLL will receive a credit on a future invoice.
At the Alameda County Law Library, we regularly have patrons who approach the Reference Desk and make the following statement – “I want to file a lien.” Tell me more, Pat Patron. That statement alone is not enough information for a law librarian to steer a person to a good resource.
Please note: below is a general overview to help with research into the area of California lien law. This information should not be construed as legal advice. Please obtain legal counsel from a person licensed to practice law in the State of California to decide what actions best fit your legal needs.
California law restricts when people can file liens on property. If a person wants to file a lien because they feel a debt is owed or they feel they have a right to some of the value of a piece of property, they must follow the standards set out under the law and use proper legal forms.
What is the definition of “lien?”
Type in “lien” as a search term in the online version of Black’s Law Dictionary, you get 96 hits. Look under the “L” listing and you find:
lien (leen or lee-ən) n. (16c) A legal right or interest that a creditor has in another’s property, lasting usu. until a debt or duty that it secures is satisfied. • Typically, the creditor does not take possession of the property on which the lien has been obtained.
Black’s Law Dictionary (10th ed. 2014)
Under this entry alone, there are over 70 sub-entries.
Nolo’s website offers a more user-friendly description of a lien, helpful to non-attorneys –
A lien is a notice attached to your property telling the world that a creditor claims you owe it some money. A lien is typically a public record. It is generally filed with a county records office (for real property) or with a state agency, such as the secretary of state (for cars, boats, office equipment, and the like). Liens on real estate are a common way for creditors to collect what they are owed. Liens on personal property, such as motor vehicles, are less frequently used but can be an effective way for someone to collect.
This definition illustrates that personal property as well as real property can be subject to liens. It also touches on the issue that simply filing a lien does not produce a flow of money to the claimant. More than one pro per – “in propria persona” or a litigant representing herself without an attorney – has come to the Reference Desk to ask what document is needed to have the court force the other party to pay the judgment just granted. The reality that a successful judgment is just one more step in a long process can be a shock.
So, if Pat Patron states that she wants to file a lien, what should she be asking herself?
Consensual lien – Has the owner of the property voluntarily allowed a lien or an encumbrance to be recorded against the property?
Consensual liens are granted for a number of reasons including: a mortgage for purchase, a reverse mortgage to provide funds in retirement, or, to insure payment for professional services related to the property, such as, solar power installations.
ACLL has titles that provide samples or templates of contracts and recordable documents for these types of business arrangements. We also have practice guides for researching the law that discusses the rights and obligations of the parties involved. The titles include:
California Legal Forms: Transaction Guide, Volume 10, “Real Estate Transactions” (KFC 68 C32) hard copy only at ACLL
Warner, How to Buy a House in California, Chapters 8, 9, 10 discuss mortgages and their obligations. (KFC 169.Z9 W37 2000 — Self-Help Area) Also available through the Nolo-EBSCO Legal Information Reference Center database
Judgment lien – Has the patron been successful pursuing a lawsuit within a court and been granted a favorable judgment?
Once a judgment has been obtained, the party needs “to collect” the judgment. An excellent overview of the procedures and strategies to collect what is owed is covered in the title written for non-attorneys – How to Collect When You Win a Lawsuit in California (KFC 1065 Z9 S38 2016). Chapter 4 includes a good summary discussion of judgment liens.
The How to Collect title also discusses liens on personal property – boats, automobiles, art – in addition to real property – land, house, apartment building.
Another title in ACLL’s collection that may be useful to understand the debt collection process is David Cook’s book, The Debt Collector’s Handbook (KF 1024 .C66 2014)
Mechanics’ lien – Is the patron a worker in the construction trade who has provided services related to the improvement of a piece of property?
There are special provisions under the law to help insure payment for people whose skills help increase the value of real property. The United States Founding Fathers introduced the first mechanics’ lien legislation. No such lien rights existed in England where many of the U.S.’s legal concepts are rooted. (See Scott Wolfe Jr.’s post at http://www.zlien.com/articles/a-short-history-of-the-mechanic-lien/).
A mechanics’ lien may be a common form of a lien but the law of mechanics’ liens itself is highly detailed. There are a number of steps that must be taken to insure the lien’s legality. Sources for researching the area of mechanics’ liens:
CEB’s California Mechanics’ Liens and Related Construction Remedies, Chapter 3, “Preparing, Serving, and Recording Mechanics’ Lien and Notice of Lien” (KFC 229 C3)
Handling Mechanics’ Liens and Related Remedies (Private Works) (KFC 995 .A1 C35) This CEB Action Guide describes the rights and remedies, including mechanics’ liens, stop notices, and bonds of the principal parties involved in a private work of improvement.
There are also information sources available on the internet –
Because of recent economic events, most people have heard of the term “foreclosure.” Foreclosure is most frequently associated with the process by which a company that provided the money for the owner to purchase a property enforces its legal rights to force a sale of the property to recover the money owed. In a legal context, the term can also be used when a creditor tries to force the sale of any property on which he has filed a lien, allowing him to obtain what is owed. For more information see – 42A California Jurisprudence 3d, Section 60, Jacobs, Liens, VII. Remedies and Enforcement, B. Foreclosure Action. (available on Westlaw.)
Turning again to Black’s Legal Dictionary –
foreclosure (for-kloh-zhər) (18c) A legal proceeding to terminate a mortgagor’s interest in property, instituted by the lender (the mortgagee) either to gain title or to force a sale in order to satisfy the unpaid debt secured by the property. Cf. repossession.
Black’s Law Dictionary (10th ed. 2014)
Most research guides state that undertaking an action to foreclosure on a lien to collect on a debt, though possible, is usually too costly and time consuming to make it worthwhile for an individual who is trying to collect monies owed.
As the author of How to Collect Win You Win a Lawsuit, Andres Schonviesner, states in Chapter 4 –
If the judgment debtor owns real property, the judgment creditor may place a lien on the property. If the debtor tries to sell or refinance the property, the creditor will be paid the judgment amount plus accrued interest from the escrow. In some situations, it may also be possible to “foreclose” on the judgment lien, and force the sale of the property. This is only an option if there is enough equity in the property to pay all existing liens and exemptions, as well as the costs of foreclosure.
Most creditors who file liens on real property wait until the property is sold for other reasons to collect money owed. A number of factors makes this a good strategy – one, when the property is sold or re-financed, there is an expectations of funds becoming available and, two, the new owner will not want to assume burden of the lien. Finance companies want to know the property title is “clear” with no other claims filed in the records prior to theirs.
The law of foreclosure is very complicated and beyond the scope of this post.
Claims involving real estate – lis pendens
Many pro pers come into the library to research filing a “lien” because they want to assert legal rights over a certain piece of property. They want to make a legal claim public so another cannot transfer title. An example would be when an owner of a family home dies without a will and there is disagreement with surviving family members as to who owns the property.
A party to an action who asserts a claim to real property may record a “notice of pendency of action” (often referred to as a “lis pendens”) with the recorder in each county in which all or part of the real property is located. See California Code of Civil Procedure §405.20
California Real Property Remedies and Damages, CEB, Section 13.4
Chapter 13 of California Real Property Remedies and Damages (KFC 169 A75 C34 2002) provides a comprehensive discussion of procedures and forms involved in lis pendens/notice of pendency of action matters. Included are the rules for who can file a lis pendens. If the signer of the lis pendens is not a licensed attorney, the party acting in pro per must obtain approval of a judge before a lis pendens can be recorded.
If a lis pendens is signed by a party appearing in pro per, approval of the judge of the court in which the action is pending is required before the notice may be recorded. California Code of Civil Procedure §405.21. The statute does not address the procedure for obtaining a judge’s approval of the notice or the means of memorializing such approval. Presumably, the request for approval should be made in the same manner as any other ex parte application. See, e.g., California Rules of Court 3.1200–3.1207. If a claimant appearing in propria persona requests court approval for a proposed notice, the court may approve the notice. California Code of Civil Procedure §405.21.
California Real Property Remedies and Damages, Section 13.32, see also Section 13.116
Here are some other special subject liens that may be seen in public property records–
Tax or assessment liens – Government tax agencies are not subject to the same rules as ordinary citizens.
Filing a notice and request for allowance of lien is how you make a claim for payment of money you’re owed in a workers’ compensation case. Attached is a lien form. Complete the form. Be sure to sign and date it. This form can also be completed at: http://www.dir.ca.gov/dwc/FORMS/EAMS%20Forms/ADJ/DWCForm6.pdf.
In California, in a marital action, a spouse may file a lien against his or her interest in community real estate to secure payment of attorney fees in the action. The lien affects only the filing spouse’s interest in the property. California Family Code Section 2033.
Another tool in the avoiding probate toolkit – Consider a deed that transfers property after death
Existing law provided that a person could pass real property to a beneficiary at death by various methods including by will, intestate succession, trust, and titling the property in joint tenancy, among others.
Beginning this year, Californians who wish to take legal steps to avoid probate of real property might want to consider the revocable Transfer on Death deed (TOD), also known as a beneficiary deed. As of January 1, 2016, a property owner may record this type of document to name beneficiaries who will receive any interest that owner has in real property after the owner’s death – without the need for probate.
One method, frequently used, was to add names of family members and others to a property’s title as joint tenants. Doing so avoided having to probate the property but this transaction also gave ownership rights to the new joint tenants – making it available for partial sale, refinancing, or, even allowing creditors to place a lien on the property. The new TOD deed also avoids issues involving possible additional taxation – gift or property reassessment. A TOD deed can be revoked if the owner chooses to do so during his or her lifetime.
As with any deed, all legally required rules must be properly followed. The documents will need to be notarized and recorded with the county recorder to become a part of the public land records. There are other issues to consider involving the use of a TOD for any property owner. A document which discusses some common questions has been published by the Sacramento (CA) Public Law Library. A copy can be read here – FAQ_TOD_SPLL
Below are samples with basic instructions for the documents involved in a Transfer on Death deed transaction:
The Alameda County Law Library provides access to legal information sources to allow the public to conduct legal research. The staff of the Alameda County Law Library are not practicing attorneys. If you are seeking advice on California law, be sure to consult with a lawyer licensed by the State Bar of California.
The Regular Appeal Filing Period in Alameda County is July 2 through September 15. Applications for the Regular Filing Period must be received/postmarked no later than September 15. The Alameda County Assessor has a very informative website at http://www.acgov.org/assessor/. Go to http://www.acgov.org/clerk/assessment.htmto find much of the information you need for an appeal.
Assessment Appeals The Clerk, Board of Supervisor’s Assessment Appeals Unit receives and processes assessment appeal applications; schedules hearings in accordance with legal requirements; maintains minutes and official records; provides administrative support to Assessment Appeal Board members and Hearing Officers; and provides assistance and education to the general public on the assessment appeals process. If you have questions about the appeals process please contact us at (510) 272-3854. Online Application for Changed Assessment Press Release (88kb) *
In addition the Alameda County Law Library in Oakland has the definitive work Taxing California Property, 4th edition by Sean Flavin. It is a three volume loose-leaf shelved on the first floor of the Law Library in stack 116B with call number KFC 881 E35. It was last updated in 2014. California Pleading and Practice, Chapter 540, “Taxes and Assessments “ with headings such as “In General”, “Structure and Administration of Property Tax System”, “Taxpayers’ Administrative Remedies”, and “Judicial Remedies Available to Taxpayers and Purchasers” provides explanations and forms.
Joint Tenancies: Landlords and Medical Marijuana Businesses, by Mike Widener. Yeoman Timber, LLC, 2012. E-book (PDF), 95 pages. $9.95.
Here in Oakland, California, the “Princeton of Pot,” Oaksterdam University, a school offering classes for those wishing to become involved in the medical marijuana business, was recently raided by the FBI, once again calling attention to medical marijuana dispensaries and the rigmarole that surrounds state law versus federal law when it comes to the sticky situation of cannabis clubs. Mike Widener, a law practitioner from Arizona and professor at the University of Phoenix, has penneda short and informative treatise in e-book form, titled (pun surely intended), Joint Tenancies. The bookexplores the subject of commercial landlords and the risks of renting to medical marijuana enterprises, or as Widener abbreviates, MMEs. Widener claims this is the only book of its kind published in the United States, and while there are other works that cover MMEs, it appears that, for now, it is indeed unique and would be of use in a law library.
Widener’s work serves as a useful and thought-provoking text for any landlord considering renting to an MME. He makes it very clear in the preface that he is not offering any legal advice and that as an attorney he cannot represent medical marijuana businesses because the transport and sale of cannabis are federal crimes. Widener notes that at the time of his book’s publication, 16 states have medical marijuana legislation on the books and 18 more states have proposed legislation permitting medical cannabis use, no doubt with the gleam of shiny new tax revenues glinting in their glazed eyes.
Widener acknowledges that he doesn’t know the nuances of the laws in each state and strongly advises that landlords considering renting to MMEs seek legal counsel in their local communities. In just 10 chapters, Widener covers the pertinent topics landlords should consider and research before entering into a lease agreement with an MME. In addition, this text could be a resource for those working in the property professions, i.e. real estate agents, real estate lawyers, investors, etc. It would also be of interest to neighboring residents and businesses.
Although Widener acknowledges that his work is not meant to entertain, he can’t resist using a font that is reminiscent of clouds of smoke for the title and pun-laced chapter titles, such as “A Budding Tenant Niche,” the “Straight Dope on Private Land Use Covenants,” and “Bogarting a Landlord’s Joint-Forfeiture Statutes.” The chapter titles are not only descriptive but also appealing to the reader (at least this pun-loving reader).
Widener’s work is thoroughly researched with QR Codes that link to core documents online, easily accessed by a smart phone or tablet with a QR reader app installed. This book would be a welcome addition to any law library as a useful tool for researching what will surely become an increasingly common legal issue as more states attempt to enact medical marijuana legislation. Widener also includes some forms that a landlord might use for this type of transaction, with the caveat that these forms do not guarantee that a landlord will not be subject to the loss of property if forfeited or to personal criminal prosecution. The book is published by Yeoman Timber, LLC and is available for purchase via the internet as a PDF for $9.95 at www.terraincogito.com/buy-joint-tenancies.
Rebekah Henderson is a part-time reference librarian at the Alameda County Law Library in Oakland, California.