Real Estate Law
Real Estate law covers and extensive legal area which is control by State statutes and local ordinances as well as the common law. It encompasses buildings, structures, fixtures, trees and shrubs that are placed upon the land as well as the rights, interests and benefits that are associated with the land itself, both underground and in the airspace above. Real estate law can often overlap with other legal areas such as contract and environmental law. Learn more
- What is tenancy-in-common? Tenancy-in-common is a form of property ownership whereby two or more people own interests in the land that may or may not be equal. Each owner is free to sell, give away or encumber their share as they wish. Although tenants-in-common may own unequal shares in the property, they are each entitled to equal use and possession. People considering owning property as a tenants-in-common should obtain legal advice to find out the full benefits and consequences of this type of property ownership in their particular circumstance. Tenants-in-common may want to consider obtaining a tenancy-in-common agreement that will spell out the tenants' rights and obligations towards each other and the property.
- What is joint tenancy? Joint tenancy is a form of property ownership by two or more people. Each joint tenant has an equal interest in the whole of the property. For a joint tenant to exist the following unities must be present:
- Time – all tenants acquired the property at the same time
- Interest – all tenants have an equal interest in the property
- Title – all tenants acquired the title by the same will or deed
- Possession – all tenants have an equal right to possession
- Joint tenants have the right of survivorship which means, upon the death of a joint tenant, the property will automatically pass to the surviving joint tenant, unless the tenancy has been severed. A joint tenancy may be severed in several ways. When severed, the joint tenancy becomes a tenancy-in-common. The parties may agree to sever the joint tenancy e.g. by agreeing to execute a deed to that effect. One party may sever the tenancy unilaterally e.g. by executing a deed to himself or to his trust as a tenant-in-common. A joint tenant cannot sell, transfer, encumber or give away the property without the consent of the other joint tenant. Doing so may sever the joint tenancy.
- What is Zoning? – Zoning is municipal level legislation which regulates, limits and controls the use of private property and the construction or nature of buildings within specific zones. The Ventura County Zoning Ordinance is split into the Coastal Zoning Ordinance and the Non-Coastal Zoning Ordinance. The purpose of zoning is to protect and maintain local neighborhoods and their residents. Some examples of violations include construction or conversion of illegal dwellings, trimming or removal of protected trees, illegal walls and fences, carrying on illegal business, keeping of animals, erection of signs. A landowner needs to be aware of the zoning regulations applicable on his or her land or any permits he may be required to get so he does not inadvertently breach the ordinance. Zoning decisions are subject to judicial review.
- Conditional Use Permits – If you want to use your land for something other that is permitted by zoning regulations you may apply for a zone change or a conditional use permit.
- Easement – An easement is a right, created by an express or implied agreement, for the lawful and beneficial use of land owned by another person. In rural parts of Ventura County, prescriptive easements are a fairly common occurrence. Prescriptive easements are easements created by the uninterrupted use of another person's land for a significant period of time. The use must be adverse to the rights of the owner, open and notorious, continuous and uninterrupted, and with knowledge and acquiescence of the owner. No prescriptive easement is acquired if the owner gave permission for the use. The easement only permits certain uses and has no effect on the underlying title.
- Adverse Possession – Adverse possession is the method of acquiring title to a parcel of land through certain acts over an uninterrupted period of time. The possession must be actual, visible, open and notorious, hostile, under claim of right, definite, continuous and exclusive. The party claiming such a right must also pay property taxes for a five year period to perfect his claim.
Estate Planning/Trust Administration/Probate
Estate planning is the process of anticipating and arranging for the disposal of assets during a person's life and upon their death. The goals of estate planning are to reduce the uncertainties of probate and maximize the value of a person's estate by reducing taxes and other expenses. Estate planning is more than just writing a will. It will often involve the creation of a trust and can include a power of attorney and appointment of guardian to care for minor children. Learn more
- What is a living trust? – a living trust is a very important estate planning tool. Not only does it provide for the distribution of your assets upon your death, it also provides a means by which your property can be managed in the event you become incapacitated during later life. If you have a large estate, a living trust may also be an essential vehicle for eliminating death tax liabilities.
- How does a living trust work? – During your lifetime you will be the trustee and beneficiary of the trust. You remain in control of your assets and can amend or revoke the trust at any time. You will appoint a successor trustee who will take control of the trust and assets upon your death, resignation or incapacity. If you become incapacitated, for example following an accident, illness, stroke or dementia, your successor trustee can step in and take control of assets within your trust to make decisions on your behalf. Your successor trustee will not need to go through the complex and costly conservatorship process. Upon your death, your successor trustee will distribute your assets in accordance with the provisions of your trust.
- Choosing a successor trustee? – You should think very carefully about who you would like to appoint as your successor trustee. Think about their geographical location. It may be easier for your successor to administer your trust if they are located near to your physical assets such as real property. Think about the types of assets in your estate. If you own a business interest will your successor be able to manage those business assets with the required degree of sophistication. The person should be mature, responsible and able to act with integrity. If you cannot think of an individual suitable for the role of successor trustee, you may want to think about appointing a bank or other trust company as your successor trustee.
- What is probate? Probate - Probate is the court supervised process by which a deceased person's property is distributed to his or her heirs. It often takes a year or more for probate proceedings to conclude and for property to be distributed. The costs of probate can also escalate very quickly and the details of your estate become public information. Having a will does not avoid the probate process. It merely gives your personal representative direction as to how you would like your property to be distributed. Assets held in a trust, however, can be distributed without having to go through the probate process.
- Conservatorship – Conservatorship is a court supervised process that enables another person to make decisions on your behalf in the event of your incapacity. This is a very complex and expensive procedure.
- Trust Administration - A living trust keeps the distribution of your estate upon your death private as assets within your trust need not go through the probate process. Your successor trustee will be in charge of the administration of your trust. There is still some time and cost involved in the administration of a trust upon your death but it is generally not nearly as lengthy or as costly as a probate.
- Other important estate planning documents – The living trust is the foundation of your estate plan but it should be accompanied by a number of other documents in order for you to be fully prepared. It is still a good idea to have a pour over will. This is a will that catches any assets that were not part of your trust upon your death and transfers them to your trust. They can then be managed in accordance with the terms of the trust. You should also have durable powers of attorney for healthcare and financial management. In these documents you name a person to act as your "attorney-in-fact" or "agent". Your agent will have the power to make financial or healthcare decisions on your behalf. You can also provide end of life and funeral directions. The durable powers remain in effect even after your incapacity. Contact us fir further advice about your estate plan.
- Updating your estate plan – if you already have an estate plan including a trust that was created a few years ago you might want to see an attorney for a review. The law or your circumstances may have changed since its creation, making it a less effective document. A review will ensure it still meets your needs and reflects your wishes.
Business law, also sometimes referred to as commercial law or corporate law, is the area of law that applies to the rights, relations and conduct of people and businesses engaged in any level of commerce. It covers the initial formation of a business including deciding on an appropriate business structure; the running of a business including commercial contracts, employment contracts and the duties and liabilities of business owners; and the exit strategy of a business whether by sale, merger or dissolution. Learn more
- LLC – A limited liability company, also known as LLC, is a common business structure in California. The LLC is a separate legal entity that can own property, sue another legal entity or be sued itself. However, the LLC is not a taxable entity, instead the owners are taxed through their personal income tax returns. The personal assets of the owners are protected from the debts and creditors of the business; this is known as limited liability. There are relatively few formalities required for owning and operating an LLC. However it is very important to remember that owners of an LLC risk losing the protection of limited liability if they illegally, unethically or irresponsibly manage the LLC.
- Corporation – A corporation is a business structure in California that protects the owners from the debts and obligations of the business. This is known as limited liability. A corporation is a separate legal entity and taxes are paid at the corporate level and individual level. There are some fairly strict formalities required in forming and maintaining a corporation. For example, the board of directors must hold board meetings and shareholder meetings annually and vote on certain corporate issues. Minutes of these meetings must be taken and kept within the corporate minute book. By failing to meet any of the required formalities, the owners risk losing the protection of limited liability and open up their personal assets to creditors in the event the corporation cannot meet its liabilities. There are many other formalities that corporation owners must be aware of as well as directors' duties towards the corporation and its shareholders. It is a good idea to obtain corporate counsel to ensure you are meeting all the requirements of a corporation.