Pascuzzi Pascuzzi & Stoker

Ag Community Lien Protections

Thu, 10 Dec 2020 16:48:15 GMT

Did you know that Fresno County, for the second consecutive year, is the top agricultural county in the nation? Along with that, 7 of the nation’s top 10 agricultural counties are found right here in California. Included in these counties are Fresno, Kern, Tulare, Monterey, Stanislaus, Merced, and San Joaquin. As impressive as this is, our ag chemical and seed providers take a financial hit when customer accounts are left outstanding.

The most common step to recovering the delinquent payments is to file a civil action for breach of contract. What is often overlooked is the Agricultural Chemical or Seed Lien that upon proper notice, is filed as a UCC-1 with the Secretary of State. Pursuant to Food and Agricultural Code (“FAC”) § 57561(b), a person who provides agricultural chemical or agricultural seed, and is in compliance with statutory requirements, has a lien upon the proceeds of the crop for the reasonable or agreed charges and for the costs of enforcing the lien.

FAC § 57551 defines agricultural chemical as fertilizers, fertilizer material, lime, chemical compounds, pesticides, pesticide chemicals, plant regulators, plant amendments, plant food, soil amendments, herbicides, fungicides, and agricultural chemicals that are applied to crops or to land that is used for the raising of crops. FAC § 57552 defines agricultural seed as the seed of any domesticated grass or cereal, of any vegetable, flower, or propagated plant, and of any legume or other plant which is grown as turf, cover crop, forage crop, fiber crop, or field crop, and mixtures of the seed.

An Agricultural Chemical Lien will attach to proceeds of the crops that existed at the time of application upon the land where the agricultural chemical was applied, or if the crops are not planted, the lien will attach to the next production crop on that land following the last date on which the agricultural chemical was applied. The proceeds that can be attached will be limited to an amount equal to the reasonable or agreed charges for the chemicals furnished within a 60-day period.

An Agricultural Seed Lien will attach to the proceeds of the crops that were produced from the agricultural seed. The proceeds that can be attached will be limited to an amount equal to the reasonable or agreed charges for the seeds furnished within a 45-day period.

Prior to filing the lien, the lien claimant must provide the non-paying customer notice of the Agricultural Chemical or Seed Lien. The notice must provide (a) that the payment of the agreed charges for agricultural chemical supplied is more than 30 days overdue; (b) the amount of the charges allowed to be claimed pursuant to an agricultural chemical or seed lien; and (c) that a lien may be claimed on the proceeds of their crop. The notice must also state at the non-paying customer may (1) allow the lien on the proceeds of their crop be filed; (2) enter into a consensual security interest in the proceeds of their crop pursuant to the Commercial Code; or (3) pay the charges that are overdue.

While these types of liens may not recover the full outstanding balance, they are a great tool for agricultural chemical and seed providers in collecting a portion of the monies due and owing, especially while litigation is pending.

Our attorneys here at Pascuzzi, Pascuzzi & Stoker are extremely knowledgeable of the various ag protection liens available and are happy to assist in recovering your proceeds.

California’s Judicial Council: COVID-19 Impact on the Landlord/Tenant Relationship

Mon, 17 Aug 2020 22:11:29 GMT

California’s Judicial Council:
COVID-19 impact on the landlord/tenant relationship

A few months ago, Pascuzzi, Pascuzzi & Stoker reported that on March 4, 2020, Governor Newsom (the “Governor”) declared a COVID-19 state of emergency. Soon thereafter, California’s Judicial Council (the Judicial Council is the policymaking body of the California courts) issued directives related to the COVID-19 impact on the landlord/tenant relationship.

In reference to the Governor’s state of emergency, the Judicial Council provided that California courts will neither process residential nor commercial unlawful detainer actions (with very few exceptions) until 90 days AFTER the Governor’s state emergency is lifted - referred to as Temporary Emergency Rules 1 and 2 (“Emergency Rules”).

Last week, the Judicial Council voted to end the Emergency Rules dealing with evictions and judicial foreclosures; Emergency Rules will sunset on September 1, 2020.

After voting to end the Emergency Rules, the Judicial Council (a segment of California’s Judicial Branch) stated it is the duty of either California’s Executive, or Legislative, Branch of Government to address the impending and looming mass number of evictions and judicial foreclosures.

What does this mean for our landlord clients?

1. The Governor (i.e. the Executive Branch) may declare additional orders concerning a moratorium on California evictions and judicial foreclosures;

2. The Legislative Branch may pass legislation concerning a COVID-19 policy related to California evictions and judicial foreclosures;

3. Local California municipalities may implement rules to address evictions and judicial foreclosures; or

4. California Court’s will commence processing evictions and judicial foreclosures on September 1, 2020.

Pascuzzi, Pascuzzi & Stoker will continue to monitor and report any and all news as it relates to further developments.

Changes to the Paycheck Protection Program

Mon, 22 Jun 2020 19:55:44 GMT

Changes to the paycheck protection program

On June 5, 2020, the Paycheck Protection Program (“PPP”) Flexibility Act of 2020 was signed into law by the President, which made significant changes to the PPP program.

For those of you who filed a PPP application, below are a series of general changes most likely applicable to your respective businesses.

1. SBA funding can be spent through December 31, 2020 instead of the original cut-off date of June 30, 2020.

2. Payroll cost spending requirement dropped from 75% to 60%.

3. Workforce levels can be restored by December 31, 2020, instead of June 30, 2020, for safe-harbor purposes.

4. Borrowers now have five (5) years to repay a SAB loan instead of two (2) years – i.e. if the SBA loan is not forgiven.

6. Potential to delay payment of payroll taxes has been added, which was previously prohibited for PPP recipients.

If Pascuzzi, Pascuzzi & Stoker can be of any further assistance with your business (big or small) please do not hesitate to contact us.

Take Precautions Now For The Anticipated Rush To Bankruptcy

Thu, 11 Jun 2020 23:06:22 GMT

Take Precautions Now For The Anticipated Rush To Bankruptcy

Here at Pascuzzi, Pascuzzi & Stoker, our legal department is preparing clients for a record number of anticipated bankruptcy filings. We expect in either late 2020, or in early 2021, many Californians could seek debt forgiveness, or seek a debt restructure plan, from, and/or administered through, the Bankruptcy courts.

Many debtors struggling to make ends meet prior to the COVID-19 pandemic are certainly expected to suffer severe financial setbacks after COVID-19 infiltrated California. As such, certain debtors impacted by COVID-19 now have what appears to be an incontestable reason to discharge debt.

One such consumer debt, certain individuals, and businesses, impacted by COVID-19 will experience, is likely to manifest itself in many months of unpaid rent.

Earlier this year, Pascuzzi, Pascuzzi & Stoker reported that on March 4, 2020, Governor Newsom (the “Governor”) declared a COVID-19 state of emergency. Soon thereafter, California’s Judicial Council (the Judicial Council is the policymaking body of the California courts) issued directives related to the COVID-19 impact on the landlord/tenant relationship.

In reference to the Governor’s state of emergency, the Judicial Council provided that California courts will neither process consumer, nor commercial, unlawful detainer actions (with very few exceptions) until 90 days AFTER the Governor’s state emergency is lifted. As of the date of this brief article, the Governor’s state of emergency is still in effect.

As an astute residential landlord, it is reasonable to anticipate certain tenants being unable to pay rent because of COVID-19, will likely too be unable to pay credit card debt, medical bills and other (too numerous to name) financial obligations. With these combinations of factors, many debtors will certainly see the filing of bankruptcy as a very attractive option.

Likewise, a commercial landlord, with respect to certain commercial tenants, should also anticipate from their/its tenants either a request for an amended lease that restructures payment terms, or an exacerbated tenant rife with a series of third-party complications causing a request for rent abatement.

In both scenarios above, a landlord should: (1) determine the value of the tenant; (2) evaluate the cost of eviction; (3) realize (if applicable) the opportunity of removing an unwanted tenant; and, (4) the plausibility of renting/leasing real property to other interested persons/parties.

At Pascuzzi, Pascuzzi & Stoker, some of our landlord clients are implementing timelines related to the service of delinquent rent notices. Implementing timelines related to the service of delinquent rent notices is both important and practical to insure all unlawful detainer complaints are ready to be filed, and processed by the courts, the day the 90 day deadline passes upon the Governor’s state emergency being lifted. In this respect, there can be no doubt that once the 90 day deadline passes, Unlawful Detainer courts will be overrun by a deluge of eviction filings.

Concerning business related effects caused by COVID-19, Pascuzzi, Pascuzzi & Stoker is presently assisting clients in structuring plans to react to tentative financial predicaments. As an example, we are providing clients help in developing contingency plans to address cash flow shortages and anticipated contract breaches caused by COVID-19.

If you believe planning for likely impacts to your business both now, and in the very near future, is a practical measure to implement, please contact Pascuzzi, Pascuzzi & Stoker for a consultation.

Wills & Estates - Latest Updates

website@sitemodify.com (Website Editor) — Tue, 12 Mar 2019 14:53:24 GMT

No one really wants to talk about their last will and testament, but this is one legal issue you don’t want to leave unattended. After all, it could lead to a major rift in your family, one which you are not around to mend.

The importance of having a very clear will and testament takes on even greater magnitude if you have children from more than one marriage, if you have adopted children, and if you don’t have any children at all. Getting expert advice can save your loved ones heartache and grief at a time when they really need to focus on grieving and recovery.

No, the Internet is Not Your Best Source of Legal Advice

Mon, 11 Mar 2019 14:55:30 GMT

An increasing number of people are turning to the internet for all sorts of advice. Fashion advice. Medical advice. Marriage advice.

Here are Premium Law, we certainly won’t dissuade you from getting fashion advice online, but we strongly recommend that you don’t turn to Google for legal advice. Because it could end up costing you a whole lot more than you expected.

California’s New LLC Law Could Cause Serious Problems for California Businesses

Tue, 22 Oct 2013 18:57:00 GMT

Last year, Senate Bill 323 was signed into California law by Governor Jerry Brown. This bill has been designated as the California Revised Uniform Limited Liability Company Act (RULLCA). On January 1, 2014, the RULLCA is set to replace the Beverly-Killea Limited Liability Company Act, which has governed California limited liability law since 1994. There are many key changes in the RULLCA that California business lawyers are left to figure out how they will affect California business owners who want to organize their businesses as limited liability companies.

One major problem of the RULLCA is that it applies retroactively to existing LLCs. There is no ability for existing California LLCs to “opt out” of the RULLCA; it will apply and potentially “rewrite” substantive provisions of existing California LLC operating agreements. This creates a danger because it appears the RULLCA is establishing an ex post facto law – a law that changes the legal consequences of an action after the action has already taken place – which is illegal according to the United States Constitution.

This Constitutional Clause preventing the creation of ex post facto laws presents the argument that the owners of a limited liability company could not have anticipated these new changes in the law, and had they known that a new set of laws would be passed that would govern the way their business was treated, they may not have chosen to organize themselves in a particular manner

Some of the more substantive changes under the RULLCA include:

Another major concern among California business owners is the uncertainty regarding the law of LLC operating agreements. A common question among LLC owners is that once the RULLCA becomes law on January 1, 2014, and an LLC was organized under the Beverly-Killea Limited Liability Act prior to that date, which set of laws govern any amendments that are made to the operating agreement? Is it possible that the original portions of the LLC operating agreement will be governed by the Beverly-Killea Act while the amendments are governed by RULLCA? If this is the case, a business owner might opt to not make an amendment to his or her operating agreement that could be beneficial to the company out of fear of the new laws.

At Pascuzzi, Moore & Stoker we are committed to staying on top of any new developments regarding the new RULLCA. If you have an existing LLC and operating agreement, we would be pleased to review it with you to determine what changes, if any, are appropriate to ensure that your company will be compliant with the new RULLCA.

Is It Time To Tune-up Your Estate Plan?

Tue, 22 Oct 2013 18:54:00 GMT

Every year you probably service your vehicle and see your doctor for your annual checkup, but do you ever give any thought to your estate plan? Just as your car needs attention to run smoothly, and your health needs to be maintained, your estate plan needs periodic review to ensure your family is properly cared for in the event you are unable to do so yourself.

You might be surprised to learn that changes in your life have caused your estate plan to be outdated or in need of a tune up. Here are just a few situations that indicate a review of your plan is in order:

A number of personal or financial events can dramatically impact your estate plan and its ability to carry out your desires. Of course if you have no estate plan, you may leave your family both emotionally and financially devastated. If you believe you may need a review or a “tune up” of your estate plan, or if you need an estate plan, contact Susan Moore or Catherine Amador at our office. They are dedicated to providing quality legal services in estate planning, elder care and family law.

The post Is It Time To Tune-up Your Estate Plan? appeared first on Pascuzzi Law .

Two New Disclosure Requirements for California Commercial Real Estate Landlords or Owners

Tue, 22 Oct 2013 18:48:00 GMT

California commercial real estate has stringent requirements when it comes to disclosing the facts about commercial property prior to entering into a contract to lease the property. It is important for California commercial real estate landlords to be aware of two new mandatory disclosures for commercial leases that went into effect in 2013. A commercial real estate landlord must now disclose the properties past energy use and whether the premise has been inspected by a “Certified Access Specialist” (“CASp).

Energy Use Reporting

In 2009, the California State Legislature enacted a new law requiring that, during the lease of the entire commercial building, lending, or sale transactions, owners must disclose “energy ratings” developed by the U.S. Environmental Protection Agency. This new law required disclosure by owners of buildings larger than 50,000 square feet by July 1, 2012, owners of buildings larger than 10,000 square feet, but less than 50,000 square feet, by January 1, 2013, and owners of all buildings less than 10,000 square feet by July 1, 2013.

Under this new law, commercial landlords are required to do the following:

This new law provides potential tenants and purchasers of commercial property with the property’s energy consumption statistics that the purchaser or tenant can use for comparison purposes with other similar properties. This is important for current commercial real estate owners because they may now want to better manage their building’s energy use since a better grade can lead to a better price.

This law can potentially lead to problems down the road with triple-net leased properties since it will require the current tenants to disclose information regarding their use of the property. Owners of commercial real estate in California will want to consult an experienced real estate lawyer regarding requirements of disclosure in their lease agreements.

Accessibility Standards

As of July 1, 2013, California commercial real estate owners and lessors are required by Civil Code section 1938 to disclose whether the commercial property has been inspected by a “CASp, and, if so, whether the property has or has not been determined to meet all applicable construction-related accessibility standards…” It is important to note that the Legislature has not made it mandatory that a new inspection is done before every new or renewed lease agreement or that the inspection be done at all. All Civil Code section 1938 requires is for the commercial real estate owner to disclose whether the property has been inspected or not. A commercial real estate owner is free to elect to not have the property inspected, however; this could potentially leave the property owner susceptible to a disability lawsuit and risk losing a valuable tenant who does not wish to occupy a non-qualifying property.

A CASp is a person who is certified by the California State Architect to inspect commercial properties for compliance with accessibility laws. In the event that the commercial property does not pass the inspection, the owner then has an obligation to make the necessary changes in order to comply with California accessibility laws.

California commercial property owners who have concerns about their leases and disclosures should call Pascuzzi, Moore & Stoker today at 559-227-1100 to schedule a consultation to have their questions answered.

The post Two New Disclosure Requirements for California Commercial Real Estate Landlords or Owners appeared first on Pascuzzi Law .

Don’t Be Left in the Shadows: Understand the Law Surrounding the Use of Solar Panels

Tue, 22 Oct 2013 18:24:00 GMT

Solar Power Laws

It can be said that there are only two things in life you can count on: death and taxes. I’d like to add a third thing to that list: rising electrical rates. The cost of electricity has risen steadily over the last decade and according to SmartestEnergy, a buyer and supplier of independent energy, it is projected to increase 60 percent over the next decade. Due to these rising costs many California residents are turning to solar power to help offset them.

For many homeowners the process of installing solar panels is one of the biggest financial decisions that they will make in their lives. It is no secret that purchasing and installing solar panels can be very costly. It is important now more than ever for homeowners thinking about installing solar panels on their homes to be aware of some of the solar panel laws surrounding their use. The three most notable laws that California homeowners should be familiar with are the Solar Shade Control Act, the Solar Rights Act and the California Solar Surplus Act.

Solar Shade Control Act

The Solar Shade Control Act prohibits the shading of solar panels that result from tree growth occurring after the solar panels are installed. Specifically, it states that no plant shall be placed or allowed to grow such that it shades a solar panel more than 10 percent between the hours of 10 a.m. and 2 p.m. This Act does not apply to plants or trees that are already in place before the solar panels were installed or to plants or trees that are used as a replacement of plants or trees that died after the installation of the solar panels. This Act does require plants or trees that are already in place, but not yet shading the solar panels, to be trimmed and maintained so that they do not impact the system. Under this Act, plants and trees that shade solar panels are viewed as a private nuisance and the solar panel owner may give written notice to parties who own the shading plants or trees. In the event the notice is ignored, the solar panel owner may sue for nuisance and seek court order requiring the neighbors to trim or remove the plants or trees.

Solar Rights Act

The Solar Rights Act prohibits local governments from restricting the installation of a solar energy system based on aesthetics as long as there will not be an adverse effect upon public health or safety. This Act also provides that homeowners associations (“HOAs”) cannot place unreasonable restrictions on homeowners who want to install solar panels on their homes. California courts will not allow a HOA to pass a restriction that completely forbids solar panels, but a restriction may be held to be enforceable under the Act’s “reasonable” requirement. The definition of what is “reasonable” is where the ambiguity lays.

A “reasonable” restriction includes those that: 1.) do not significantly increase the cost of the solar system, 2.) do not significantly decrease the system’s efficiency, or 3.) allow for an alternative system of comparable cost, efficiency and benefits. “Significant” is defined as those restrictions that increase the system’s cost by over 20 percent or decrease the system’s efficiency by more than 20 percent. This definition of “reasonable” allows HOAs some leeway in determining how solar panels are placed in their communities.

California Solar Surplus Act

The California Solar Surplus Act mandates that utility companies pay consumers who have solar panels for the solar electricity that they generate that is in excess of what their home requires. This means that if you install solar panels on your house which generate electricity above and beyond the amount that you need the electrical company will pay you cash for it or assign credits to your account that you can redeem in the future.

If you or someone you know is thinking about installing solar panels on their house or has a question regarding a neighbor’s use of solar energy, contact Pascuzzi, Moore & Stoker to discuss the issues in more detail.

The post Don’t Be Left in the Shadows: Understand the Law Surrounding the Use of Solar Panels appeared first on Pascuzzi Law .

What Do You Do If Continued Co-Ownership of Real Property Is No Longer Liable?

Tue, 22 Oct 2013 18:13:00 GMT

Co-Ownership of Real Property

When two people are married and one of the spouses wants to end the marital relationship the process of divorce allows him/her to do so. California has a similar process that allows co-owners of real property who are not married to each other to end their co-owner relationship. This process is known as a partition action.

In the event the co-owners are unable to come to an agreement on how to sell or split up the real property a partition action may be necessary. A partition action should be seen as a last resort due to its cost and fact it must proceed in court which can be very time consuming. Here is an overview on how a partition action will play out in court.

The party who wishes to initiate the action (the “Plaintiff”) must file a verified complaint for partition. The court will first determine the ownership interests of each of the co-owners. In most cases, the ownership interests are not in dispute, but if property has been passed down through the generations or there is any uncertainty of title, this will be determined before the property can be subdivided or sold. At this point the party wishing to sell can seek an interlocutory judgment ordering the property be divided or sold.

An interlocutory judgment is essentially an interim order determining the ownership interests of the co-owners and ordering the property be sold or divided absent some defense to the action. In general, there is no defense to a partition action.

The court also determines whether the property should be sold or divided up among the co-owners. Courts prefer to divide the property if it is fair and legally possible. While this may be possible if there are multiple lots or the property is a large agricultural lot, if the co-owners own a home, condominium or an industrial building, the property cannot be divided up into multiple parts so partition by sale is the only viable solution.

At this point the interlocutory judgment will appoint a referee to oversee the sale of the property. The referee will determine the best way to sell and has the authority to hire an auction house or real estate broker to market and sell the property. The referee will also hire an accountant to review the books and determine any accounting issues. The sale must then be confirmed in a confirmation hearing, public notice of which is published to encourage anyone willing to pay more to bid on the property to ensure the highest price for the property is obtained. If there are no other bidders, the court should confirm the sale. After the sale, the referee files a report of the sale, the accounting and proposed distribution to the co-owners or anyone else with an interest in the and allocates any costs.

It is important to note that a partition action can be very costly. The referee is paid for his/her services out of the sale proceeds, the attorney for the party desiring to sell and court costs are paid out of the sale proceeds, and if the property is sold by auction it does not always generate the highest possible sales price. All of these fees reduce each party’s share of the net proceeds.

A partition action is not the best way of resolving a dispute between co-owners, all parties end up with less net sales proceeds, but it does provide a means of resolving a situation when negotiations between the co-owners have reached an impasse. If you or someone you know is involved in a dispute with a co-owner, contact Pascuzzi, Moore & Stoker to help you resolve the dispute and provide a cost-benefit analysis of settlement versus litigation.

The Magic of Mediation

Tue, 22 Oct 2013 18:06:00 GMT

Disputes between two parties are no good. However, it is one of the reasons to hire a good attorney. Daily, we discuss a new matter with one of our existing clients or a new client which focuses on a dispute. There are two courses of action a dispute can take: fight to the death or resolve it early. Here, at Pascuzzi, Moore & Stoker, we always strive for early dispute resolution. We know that all good fights result in our clients expending vast amounts of money, their valuable time and most importantly, their emotions.

Lawsuits, expense wise, range wildly based on the nature of the dispute, the business practices of the attorneys involved and the type of forum, being arbitration, jury trial or a bench trial. An amazing amount of time is devoted by litigants to meetings with his/her attorney, attending depositions, responding to discovery requests, reviewing documents, talking to witnesses, etc. As for emotions, instead of counting sheep at night, you will be counting causes of action and defenses.

What is the alternative to lengthy and costly litigation? One could tuck his/her tail between his/her legs and walk away or engage in mediation. We recommend mediation, which is an alternative dispute resolution technique which gained popularity about 20 years ago and has grown exponentially in use and effectiveness. The process involves both parties agreeing to engage in mediation and the hiring of a third party mediator. The goal of the mediator is to assist the parties and their attorneys to find a satisfactory resolution to the problem. It normally takes a half to a full day of meeting, depending on the complexity of the dispute, the number of parties involved and the skill of the mediator.

Our success rate in mediation is approximately 80% and we pride ourselves in pushing for and facilitating the early mediation process. We believe it works a whole lot better than a protracted litigation. Do not get me wrong, a successful mediation rarely results in cheering and smiling faces. It is a compromise and both sides normally feel like they gave too much and got too little. I always say that a successful mediation results in both sides being equally ticked off, which is a good thing, compared to the alternative, which is a year or two of the litigation process only to find yourself sitting in a wooden chair, in court, waiting for your decision to come down from the judge or jury.

First off, avoid disputes through carefully drafted contracts, but, if you find yourself embroiled in a dispute, call us and we will try to successfully mediate the problem, or, we can fight the opposition to the death. We do both, but believe we have happier clients in the end, if we can successfully mediate.

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Eminent Domain and High Speed Rail

Tue, 22 Oct 2013 17:54:00 GMT

With so much coverage regarding High Speed Rail and how California’s largest public works project in decades will affect the taking of privately owned property, the doctrine of eminent domain has become a hot topic. For instance, here in the Central Valley, it has been reported that as many as 350 properties in the proposed High Speed Rail route will either be taken in their entirety or by section. You may ask how can government do such a thing?

Answer:

The Fifth Amendment of the United States Constitution, and Article 1, Section 19 of the California Constitution, both allow for governmental takings of private property. As it relates solely to California, eminent domain law can be found in Code of Civil Procedure section 1230.010, et seq.

With respect to takings of property, the government may not take privately held property with absolute impunity. Article 1, section 19, of the California Constitution sets forth the general constitutional requirement to pay just compensation for private property taken by the government for public use, stating: “[P]rivate property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner.”

The process of a governmental entity’s (hereinafter referred to as “the Entity”) taking of private property is referred to as condemnation.

Process:

The condemnation process commences when the Entity provides notice to the property owner that the property in question will be seized. The Entity will appraise the property and offer the landowner what its appraisers have determined to be its fair market value. If the property owner refuses to comply, a court hearing will be scheduled wherein the Entity must show that the property is to be taken for a public use and just compensation has been offered in return.

Generally, as with the case of High Speed Rail, the public use distinction has previously been discussed, adopted and codified in some form of public hearing held by the Entity. This leaves only the issue of just compensation and whether the property owner has been fairly reimbursed for his/her loss.

Definition of Public Use:

For the sake of brevity, “public use” requires the taken property be used to benefit the public rather than specific individuals. Once it is established that the taking is for a public use, the Entity must pay fair market value for the property.

Definition of Fair Market Value:

Fair market value can be defined as the amount for which real property would be sold in a voluntary transaction between a buyer and seller, neither of whom is under any obligation to buy or sell, in the open market, and for a reasonable period of time.

Within the context of fair market value, Evidence Code sections 816, 820 and 821 allows the introduction of other factors in determining property value, such as: (1) comparably priced parcels; (2) lease values associated with the property; (3) permanent fixtures; and (4) other improvements made to the property. Any determination of an increase or decrease of property value related to the taking, however, cannot be included in the evaluation process. This means that a property owner will be paid what the land is currently worth and not what it is projected to be worth.

When the Entity takes only a portion of a property, fair market value for the severed piece of property must be reimbursed. In comparison to when an entire property is taken, the property owner may be entitled to severance damages if the remainder of his/her parcel suffers damage because of diminished value. Similarly, if the partial taking causes the property owner to receive a benefit on the remaining part parcel, any claim for severance damages would be offset by the realized benefit.

Other Means to Evaluate Fair Market Value:

The loss of goodwill is usually recoverable to any business operating on the property at the time of its taking. Goodwill is defined as the benefits that accrue to a business as a result of its location, reputation for dependability, skill or quality and any other circumstances resulting in probable retention of old, or acquisition of new, patronage. To receive compensation for the loss of goodwill, Code of Civil Procedure section 1263.510 requires that the loss cannot be reasonably prevented by relocation of the business or by taking reasonable steps to preserve the goodwill.

Relocation benefits may too be recovered if requested in a timely manner. Relocation benefits may include facility moving costs and costs for transportation and reinstallation of equipment and fixtures.

Costs to Challenge Amount Offered for the Property:

To show the afore mentioned damages and values in contrast to what the Entity has offered for purchase, appraisers in real estate, fixtures, equipment and business goodwill evaluation will most likely need to be retained. Attorney fees expended in litigation are generally not recoverable from the Entity although certain exceptions do exist.

This article is simply an overview of the condemnation process. The timelines and procedures to address a condemnation defense are strictly adhered to and not mentioned in this article. To insure your rights are thoroughly addressed and protected, please feel free to contact us if you are adversely affected by the High Speed Rail project.

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Easements – What Are They and Do I Have One?

Wed, 11 Sep 2013 16:51:00 GMT

An easement is a non-exclusive right to use of the property of another. The most common is the right to cross someone’s land to gain access to yours, but the easement may be for a pipeline, view, solar, landscaping, etc. An easement is required to be in writing to be effective and is recorded to give notice to the world in case either property is sold, but there are exceptions.

An express easement is in writing and describes both properties, the actual easement area, the term of the easement, the approved uses and any other terms and conditions. When this document is notarized and recorded the holder of the easement is protected in the event title to the burdened property is transferred.

A prescriptive easement is one which is acquired over time and by meeting certain tests. To obtain a prescriptive easement one must: use the easement hostile to the true owner’s rights, openly, continuously and visibly. If this occurs the person claiming a prescriptive easement may file a lawsuit to have the Court recognize their prescriptive rights or the parties may wish to sign an express easement to memorialize the rights to avoid Court.

An easement by implication is available if a property owner sells one of two or more parcels and fails to reserve an easement for himself, or fails to transfer an easement to the buyer, over a clearly visible roadway. Finally, an easement by necessity may be available if no other access to property is possible.

Easement issues are usually hotly contested as ownership and use of land is near and dear to every property owner’s heart. We are here to assist you with any easement or other real property issue you may have.

The post Easements – What Are They and Do I Have One? appeared first on Pascuzzi Law .

An easement is a non-exclusive right to use of the property of another. The most common is the right to cross someone’s land to gain access to yours, but the easement may be for a pipeline, view, solar, landscaping, etc. An easement is required to be in writing to be effective and is recorded to give notice to the world in case either property is sold, but there are exceptions.

An express easement is in writing and describes both properties, the actual easement area, the term of the easement, the approved uses and any other terms and conditions. When this document is notarized and recorded the holder of the easement is protected in the event title to the burdened property is transferred.

A prescriptive easement is one which is acquired over time and by meeting certain tests. To obtain a prescriptive easement one must: use the easement hostile to the true owner’s rights, openly, continuously and visibly. If this occurs the person claiming a prescriptive easement may file a lawsuit to have the Court recognize their prescriptive rights or the parties may wish to sign an express easement to memorialize the rights to avoid Court.

An easement by implication is available if a property owner sells one of two or more parcels and fails to reserve an easement for himself, or fails to transfer an easement to the buyer, over a clearly visible roadway. Finally, an easement by necessity may be available if no other access to property is possible.

Easement issues are usually hotly contested as ownership and use of land is near and dear to every property owner’s heart. We are here to assist you with any easement or other real property issue you may have.

The post Easements – What Are They and Do I Have One? appeared first on Pascuzzi Law .

California Homeowner Bill of Rights

Sat, 07 Sep 2013 23:55:00 GMT

According to the Center for Responsible Lending, over the last five years “California has led the nation in foreclosures, with more than 785,000 homes lost, and another half-million already in the foreclosure process.” As of January 1, 2013, California homeowners may benefit from a new law entitled the California Homeowner Bill of Rights that protects them from wrongful foreclosures and unethical practices by lenders.

The California Homeowner Bill of Rights is designed to ensure that homeowners are considered for, and have a meaningful opportunity to obtain, available loss mitigation options, such as loan modifications or other alternatives to foreclosure. Essentially, the new law brings into state statute some of the key elements of the National Mortgage Settlement Agreement. However, unlike the National Mortgage Settlement Agreement which only dealt with the five largest lenders, the new law adds protections to deal with all servicers – not just the big five.

The California Homeowner Bill of Rights applies only to first lien mortgages that are secured by owner occupied, 1-4 unit properties. It does not cover borrowers in an active bankruptcy nor does it give borrowers a right to a loan modification.

In a nutshell, the California Homeowner Bill of Rights imposes the following requirements on most lenders and servicers:

If you or someone you know suspect your lender is violating the Homeowner Bill of Rights, contact Pascuzzi, Moore & Stoker to enforce your rights under the new laws.

The post California Homeowner Bill of Rights appeared first on Pascuzzi Law .

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