REAL ESTATE

RESIDENTIAL & COMMERCIAL

CALIFORNIA | FLORIDA

CONTACT US

MBK Chapman can help

REAL ESTATE

RESIDENTIAL & COMMERCIAL

CALIFORNIA | FLORIDA

CONTACT US

MBK Chapman can help

REAL ESTATE

RESIDENTIAL & COMMERCIAL

CALIFORNIA | FLORIDA

CONTACT US

MBK Chapman can help

REAL ESTATE

RESIDENTIAL & COMMERCIAL

CALIFORNIA | FLORIDA

CONTACT US

MBK Chapman can help

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AREAS OF EXPERTISE

MBK Chapman’s highly experienced real estate lawyers have helped thousands of clients secure their real estate-related objectives in all manner of real estate disputes, contract preparation, and negotiations. Our attorneys begin by partnering with our clients to understand their specific goals and objectives, after which we devise the most efficient and effective approach to ensure the best possible result. The firm’s real estate attorneys are well known experts in both commercial and residential property laws and regularly represent property owners in a variety of matters, including: negotiating complex real estate deals, drafting highly sophisticated real estate contracts, HOA disputes, nuisance, trespass, encroachment, easements, adverse possession, neighbor disputes, evictions, destruction of property, illegal cutting/removal of trees, partition actions, first-party bad faith insurance, failure to disclose, and fraud.

FAILURE TO DISCLOSE / FRAUD

Concealment, failure to disclose known/suspected defects, and intentional/negligent misrepresentation are all forms of fraud that form the basis of many real estate disputes. Generally, you may have a claim for fraud if:

  • there was an intentional misrepresentation;
  • you justifiably relied on the misrepresentation; and
  • you were damaged by the misrepresentation.

(Civ. Code, §§ 1709 and 1710(4); Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166; Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 230-231; Engalla v. Permanente Med. Grp., Inc. (1997) 15 Cal. 4th 951, 974.)

There are a variety of remedies available to a defrauded party, including rescission of the contract (i.e., unwinding the transaction), compensatory damages (i.e., making the defrauded party financially whole), and in certain cases, punitive damages.

Contact Us to Discuss Your Dispute by Calling: (949) 767-3910

DISPUTES BETWEEN NEIGHBORS

Because most of us live in close proximity to others, it’s no mystery as to why there are so many conflicts that arise between neighbors. When those conflicts affect your right to the quiet enjoyment of your property, you can enforce your rights by filing a claim. For example, you may have a legal claim against your neighbor if they:

  • build an unnecessarily high fence right next to your property line—i.e., a spite fence (Civ. Code, § 841.4);
  • allow branches or leaves from their trees to either cause damage to, or land on, your property (see Bonde v. Bishop (1952) 112 Cal.App. 2d 1);
  • allow roots from their trees to damage your property;
  • trespass onto your property—either directly by walking onto your property, or indirectly, such as by allowing water to spread onto, or under, your property (Cassinos v. Union Oil Co. (1993) 14 Cal.App.4th 1770, 1778);
  • participate in illegal activities (e.g., drug dealing, non-permitted activities, etc.) (Civ. Code, §3479); or
  • engage in excessively noisy activities—or for that matter, any other activities—that interfere with your reasonable use and quiet enjoyment of your property (Adams v. MHC Colony Park, L.P. (2014) 224 Cal.App.4th 601, 610; Monks v. City of Rancho Palos Verdes (2008) 167 Cal.App.4th 263, 302-303).

Depending on whether the nuisance caused by your neighbor is permanent or continuing, you may be entitled to monetary damages, as well as an injunction (which means that the court would order your neighbor to do or not do something).

Contact Us to Discuss Your Dispute by Calling: (949) 767-3910

DISPUTES INVOLVING YOUR HOA

If you live in a community governed by an HOA, then you’re subject by law and contract to abide by your HOA’s governing documents. The most well known of those documents are the CC&Rs. Regardless of whether or not your HOA is required to enforce the governing documents against its members, if your HOA does not do so, you have the legal right to step in and do it yourself. (Civ. Code, § 5975.) More importantly, if you prevail in an action to enforce your association’s governing documents, you’re entitled to reimbursement for your attorneys’ fees and costs. (Ibid.)

Disputes between an HOA and a homeowner like you can take many forms, but most of the time, the dispute involves one or more of the following issues:

  • violations of the Davis-Stirling Act (e.g., HOA’s failure to: maintain common areas, conduct reserve studies, hold proper elections, provide an accounting, etc.) (Civ. Code, §§ 4775; 5550; 5100 et seq; and 5305);
  • failure to maintain the common areas (Civ. Code, § 4775);
  • breach of the governing documents (e.g., CC&Rs, bylaws, rules, architectural guidelines, etc.);
  • harassment by the HOA or another owner/resident;
  • illegal discrimination by the HOA or another owner/resident;
  • disputes between owners/residents of the HOA (e.g., excessive noise, odors, health and safety violations, spite fences, and other private nuisances);
  • the HOA’s selective enforcement of the CC&Rs or other governing documents;
  • unfair or improper levying of fines or suspension of privileges;
  • illegal suspension of right to vote in HOA election (Civ. Code, § 5105(g)(1);
  • breach of fiduciary duty (e.g., misappropriation or embezzlement of HOA funds); or
  • negligence (e.g., damage to your property).

Contact Us to Discuss Your Dispute By Calling: (949) 767-3910

PRIVATE NUISANCE

Simply put, a cause of action for private nuisance requires you to prove that a neighbor interfered with your use and quiet enjoyment of your property. (Civ. Code, § 3479; Adams v. MHC Colony Park, L.P. (2014) 224 Cal.App.4th 601, 610; McBride v. Smith (2018) 18 Cal.App.5th 1160, 1180.) The most common private nuisance claims involve things like:

  • engaging in illegal activities;
  • causing excessive noise;
  • causing offensive odors, debris, or dust; and
  • violating privacy rights (e.g., cameras pointed towards your property).

Contact Us to Discuss Your Dispute By Calling: (949) 767-3910

TRESPASS / ENCROACHMENT

A trespass occurs when someone (or something) enters onto land that you have the right to possess without your permission. (Wilson v. Interlake Steel Co. (1982) 32 Cal.3d 229, 233; Cassinos v. Union Oil Co. (1993) 14 Cal.App.4th 1770, 1778.) This means that a renter can sue for trespass because the renter maintains the right to possess the land. (Dieterich Int’l Truck Sales, Inc. v. J.S. & J. Servs. Inc. (1992) 3 Cal.App.4th 1601, 1608–10.)

When most people think of trespass, they are thinking of someone entering onto their land. And that is absolutely accurate. But trespass can also occur even if nobody else physically enters onto your land. For example, if your neighbor’s pool leaks onto your property, or your neighbor’s broken pipe allows sewage from their property to leach onto yours, those too can be deemed trespasses.

You may have noticed that in some cases, trespass seems very similar to a nuisance. You’re not alone. But there is a difference. A trespass refers to a physical invasion of your property—either by persons entering the property, a substance that is dumped, has drained onto, or under your property (e.g., drainage, toxic spills, etc.), or the encroachment of a physical object, such as a structure built over a property line. A nuisance, on the other hand, is based on a property’s owner’s use of his or her own property in a way that adversely affects other property owners. Typical examples of a nuisance include things like excessive noise, vibrations, odors, illegal activities, etc.

While injunctive relief (i.e., a court order to stop the trespass) is typically available for any trespass, the type of monetary damages available depend on whether the trespass is still ongoing or not.

Contact Us to Discuss Your Dispute By Calling: (949) 767-3910

EASEMENTS

Simply put, an easement is an interest in someone else’s land which gives the “owner” of the easement a limited right to use the other’s property. There are many different types of easements (e.g., express, implied, by necessity, prescriptive, etc.). You’ll probably be surprised to learn that your property is subject to at least one easement, probably in favor of the power/utility companies. If you’re curious, obtain a title report for your property and take a look.

The most common disputes that occur concerning easements usually involve either the land owner interfering with someone else’s easement (onto the owner’s land), or the owner of the easement (the one who does not own the land) going beyond the rights granted in the easement. For example, a new homeowner might discover that a neighbor is using the owner’s private driveway to access the neighbor’s property. Whether the new homeowner has the right to block such access or not depends upon whether a valid easement exists.

If you are the “owner” of an easement (i.e., you have a right to enter or use a defined portion of someone else’s property) who is being denied access, or if you are the property owner facing someone else who is violating the terms of an existing easement (or claiming to have an easement where none exists), you can obtain monetary and injunctive relief to enforce your rights.

Contact Us to Discuss Your Dispute By Calling: (949) 767-3910

ADVERSE POSSESSION

Many people are surprised to learn that under very specific circumstances, someone else can trespass on their land (or, more likely, a portion of their land) and eventually gain legal ownership of that part of their land. The legal doctrine that allows this involuntary transfer of ownership is called adverse possession.

Sometimes the adverse possessor is intentionally attempting to take someone else’s property, but more often it’s done unintentionally (usually as a result of an honest mistake). And while adverse possession doesn’t happen nearly as much today as it used to, it does still happen.

To succeed on a claim for adverse possession (i.e., to adversely possess all or a portion of someone else’s land), the adverse possessor must:

  • openly exercise exclusive possession of the land;
  • continuously for at least 5 years; and
  • pay the property taxes on the land (or portion of land at issue).

(Civ. Code, § 325; Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296.)

Contact Us to Discuss Your Dispute By Calling: (949) 767-3910

EVICTIONS

Most people already know that landlords have the right to evict tenants for a whole host of reasons (e.g., nonpayment of rent, violation of a lease/rental agreement, causing a nuisance, etc.). Sometimes, however, a tenant simply refuses to leave. When that occurs, the law does not allow a landlord to engage in what is often called “self help” (i.e., hiring movers to forcibly remove the residents, turning off the power/water, etc.). Instead, a landlord must file a lawsuit called an unlawful detainer.

Unlawful detainer actions are most commonly filed against tenants who:

  • fail to pay rent even after receiving a 3-day notice to pay or quit*;
  • refuse to leave a property at the end of the lease term;
  • engage in activities that constitute a nuisance and refuse to cease such behavior;
  • fail to comply with a lease provision despite receiving a notice to perform or quit;
  • cause damage to a leased property; and
  • participate in illegal activities on the property.

(See Code of Civ. Pro., § 1161.)

*Under the COVID-19 Tenant Relief Act of 2020, there are substantial protections in place to protect tenants from being evicted for nonpayment of rent. (Code of Civ. Proc., §1170.01 et seq.)

Contact Us to Discuss Your Dispute By Calling: (949) 767-3910

REMOVAL / CUTTING OF TREES

“Trespass to timber” is the wrongful removal, destruction, or injury to any trees or underwood located on someone else’s property without permission. (Code Civ. Pro., § 733.) It is illegal to engage in any trespass to timber.

If someone cuts down, removes, or injures any trees or underwood on your property, you have the right to sue for trespass to timber. The amount of monetary damages to which you’ll be entitled to depends on the facts:

  • If the court finds that the trespass was unintentional (e.g., the trespasser had a reasonable basis to believe that the trees/underwood were on his or her property, and not yours), you’re entitled to double the value of the trees/underwood destroyed;
  • If the trespass was intentional, you’re entitled to triple the value of the trees/underwood destroyed; and
  • If the trespass was committed by someone from the government (say, to make repairs to a highway or bridge), you’re entitled to just the value of the trees/underwood destroyed.

(Civ. Code, § 3346.)

Contact Us to Discuss Your Dispute By Calling: (949) 767-3910

PROPERTY DAMAGE

Generally speaking, there are two broad categories of property: real property (i.e., land or the structures built on land) and personal property (i.e., virtually everything else, including tangible personal property like all of your “stuff”).

For obvious reasons, destroying someone else’s property without their permission is almost always illegal. For example, you can’t decide to smash your neighbor’s windows, nor can you crush your neighbor’s car with your giant pickup truck. Not only is such conduct a crime (Pen. Code, § 594), it can also subject the wrongdoer to significant civil liability.

Since property damage is almost always a byproduct of another wrongful act, most cases of property damage occur because someone else was:

  • acting negligently;
  • causing a nuisance;
  • trespassing;
  • guilty of conversion (i.e., the term for the civil claim of theft); or
  • committing a trespass to chattels, which is a fancy term for interfering with someone’s lawful possession of their tangible personal property.

You can file a claim to recover your losses resulting from someone else’s damage to your property, and in certain cases, where the property damage is ongoing, you can obtain injunctive relief to stop the damage from continuing.

Contact Us to Discuss Your Dispute By Calling: (949) 767-3910

CONVERSION

Conversion is the civil version of the crime of theft. Conversion occurs when someone else takes control over your personal property (or continues to maintain control when you’ve demanded that they return your property to you). (Welco Electronics, Inc. v. Mora (2014) 223 Cal.App.4th 202, 208.) Money can be converted if the amount taken is a specific sum capable of identification. (Id. at 216.)

If someone converts (i.e., steals or takes control over) your property, you may have a claim not only for the value of the property at the time of the conversion, but fair compensation for the time and money expended pursuing the property. (Virtanen v. O’Connell (2006) 140 Cal.App.4th 688, 708; Civ. Code, § 3336.) Punitive damages may be available if the plaintiff shows that the defendant acted oppressively, fraudulently, or maliciously. (Civ. Code, § 3294.)

Trespass to chattels v. conversion. While both trespass to chattels and conversion are similar, there is a difference. Conversion arises from the complete dispossession of the personal property, while trespass to chattels deals with a lesser degree of interference. Note that neither tort is appropriate in the context of real property.

Contact Us to Discuss Your Dispute By Calling: (949) 767-3910

INSURANCE BAD FAITH

If your insurance company denies a claim (or withhold benefits or payments) that reasonably should’ve been covered under your policy, you may sue your insurance company for bad faith. (Major v. Western Home Ins. Co. (2009) 169 Cal.App.4th 1197, 1209.) This is called a first party bad faith claim.

There is an implied promise of good faith and fair dealing in every contract, including insurance policies. That “implied promise” includes a duty on the part of an insurance company to not unreasonably withhold or delay benefits due under a policy, and to not do anything to interfere with the right of the insured party to receive the benefits under the policy. And in the context of a bad faith insurance claim, that implied promise includes a duty on the part of an insurance company to not unreasonably withhold or delay benefits due under a policy. (Maslo v. Ameriprise Auto & Home Ins. (2014) 227 Cal.App.4th 626, 633.) In fact, courts have gone so far as to say that insurance companies must “give at least as much consideration to the welfare of its insured as it gives to its own interests.” (Egan v. Mut. of Omaha Ins. Co. (1979) 24 Cal.3d 809.)

Contact Us to Discuss Your Dispute By Calling: (949) 767-3910

ACTIONS TO PARTITION

There are a variety of reasons why someone would share title to real property (i.e., land) with someone else. For example, a married couple will often both be on title to their home, as will business partners, unmarried couples, friends, or even investment groups. Unfortunately, sometimes disagreements arise between property owners regarding important issues such as whether to spend money making improvements, whether to keep or sell the land, or whether to live at the property or rent it out.

When the owners can’t resolve such disagreements amongst themselves, their only legal option is to file a lawsuit more commonly known as a partition action, where the court will terminate the owners’ common ownership in the same property, order a sale of the property (in most cases), and decide on how to divide the proceeds of the sale. (Code of Civ. Proc., § 872.010 et seq.; 14859 Moorpark Homeowner’s Ass’n v. VRT Corp. (1998) 63 Cal.App.4th 1396.)

The court will examine a variety of factors in determining how to allocate the sale proceeds. Most frequently, for example, the court will impose certain offsets in favor of one or more owners who may have:

  • lived/worked offsite while the other owner(s) lived/worked rent free on the property;
  • discovered that the other owner(s) were collecting rents from third parties and not sharing such rents;
  • carried the burden of paying more of the property-related costs (e.g., mortgage, maintenance, repairs, etc.);
  • made the down payment on the property; or
  • learned that the other owner(s) caused damage to the property.

Contact Us to Discuss Your Dispute By Calling: (949) 767-3910

QUIET TITLE

The purpose of a quiet title lawsuit is to establish or clarify title to a parcel of land—such as when there are current or potential adverse claims to that title from others. Bringing a lawsuit for quiet title is sometimes referred to as quieting title to a parcel of land, and it is controlled by statute. (Code Civ. Proc., §§ 760.010 to 764.080.) Quiet title claims must be brought in the county where the property is located. (Code Civ. Proc., §§ 760.050.) Once the court rules on a quiet title claim, the prevailing party will have clear title to the land. In other words, the court’s ruling is final as to the ownership of the property.

A lawsuit to “quiet title” in a parcel of land may be appropriate in a variety of situations, such as when:

  • there are discrepancies among two or more recorded documents regarding the same piece of property (e.g., see Claudino v. Pereira (2008) 165 Cal.App.4th 1282);
  • someone else is encroaching on your land, or otherwise trying to establish some rights to all or a portion of your property (such as through a prescriptive easement or adverse possession); or
  • there is a discrepancy between where a boundary line is actually located.

Contact Us to Discuss Your Dispute By Calling: (949) 767-3910

REAL ESTATE CONTRACTS / DOCUMENTS

Real estate contracts are, by and large, extremely complicated documents. Not only are they typically very long, but a lot of them rely on old fashioned phrasing and hackneyed legal jargon that sounds like the document was written 100 years ago.

The vast majority of real estate contracts can be divided into one of two categories: commercial contracts or residential contracts. Commercial real estate agreements involve the operation of a business venture, such as a commercial lease. Residential real estate agreements on the other hand involve non-commercial/non-business properties, such as your home, and might include, for example, a residential lease. There are, of course, different types of commercial leases (e.g., single-net, triple-net, full-service gross, etc.) and different types of residential leases (e.g., term for years, periodic tenancy, etc.).

In addition to leases, there are hundreds of other commercial and real estate documents that you might need, such as:

  • deeds of trust;
  • quitclaim deeds;
  • promissory notes;
  • security agreements (mortgages);
  • purchase & sale agreements;
  • option agreements;
  • disclosures;
  • facility use agreements;
  • indemnity and waiver agreements;
  • rental agreements; or
  • 3-day, 30-day, and 60-day notices to perform or quit.

Contact Us to Discuss Your Dispute By Calling: (949) 767-3910

TESTIMONIALS

I am so grateful for the representation from MBK Chapman. With one simple demand letter the problem was rectified. They are wonderful to have in your corner!

5 Star Review, Yelp, Posted by Martine L.

Michael Kushner is an amazing attorney! It is great to have such a savvy business attorney, whether creating contracts or analyzing vendor relationships, he is my go to!

5 Star Review, Yelp, Posted by Rosie S.

I am so grateful to Michael Kushner for defending me during my real estate nightmare, and recovering all my damages! He is brilliant!!

5 Star Review, Yelp, Posted by Christie D.

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ABOUT US

Unlike many of its competitors, MBK Chapman is the real deal. Led by two pioneering and highly experienced litigation and transactional attorneys, the firm is staffed by some of the most impressive legal minds in the business. Leveraging decades of actual courtroom and transactional experience, MBK Chapman’s attorneys are always ready to win for their clients. Whether aimed at negotiating and resolving highly complex business and real estate disputes, or going to court to litigate business and real estate cases, the battle-hardened lawyers at MBK Chapman are truly the best in the business.

Clients who retain MBK Chapman come to quickly understand why its two leaders are so well respected among the scores of judges, attorneys, and celebrities who have hired them over the last several decades. But MBK Chapman’s laudable contribution to the legal community does not end with its superstar team of lawyers and support staff. Rather, Michael B. Kushner, one of MBK Chapman’s founding shareholders, pioneered and developed two truly paradigm shifting and disruptive technologies that will, among other things, change the way lawyers interact with their clients.

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60

YEARS

OF EXPERIENCE

10k+

CASES

LITIGATED

1

PRIORITY

YOU

Led by two pioneering and highly experienced litigation and transactional attorneys, MBK Chapman is staffed by some of the most impressive legal minds in the business. MBK Chapman’s attorneys have considerable hands-on experience in all manner of HOA-related disputes involving condominiums, townhomes, apartment projects/conversions, single-family residences, and co-ops. Along with over 60 years of actual courtroom experience (just between the two founding partners at the firm), a well-known reputation for being effectively aggressive, and a well-deserved reputation for excellent writing and a uniquely client-centered approach, the attorneys at MBK Chapman are, quite simply, the very best around.

Michael B. Kushner

Partner

William D. Chapman

Partner

Jaycee Peralta

Partner

Sara Etemadi

Senior Associate

CONTACT US

MBK Chapman PC can help

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