At death, necessary and important administration must take place. Whether it is trust administration, estate administration, or probate, our estate planning division has experience addressing a spectrum of estates and trusts ranging from insolvent to taxable estates. Our objective is to ensure the decedent’s estate is managed properly, effectively, and efficiently to alleviate the burdens during such a trying time. Prob. Code §7001.

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Property agreements are strategic tools to change, convert, or confirm the character of your property. Such agreements are helpful for specific planning purposes, clarifying title, and avoiding potential administrative issues. In California, property agreements have strict statutory requirements that must be navigated carefully. Whether your needs are to preserve your separate property, convert community property, or confirm the character of specific property, our knowledgeable attorneys will help you navigate the requirements under the law to accomplish your objective. Fam. Code §850 et. seq.

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Business succession planning is the strategy of passing on the ownership and leadership of an entity. This often-neglected aspect of business ownership is important to ensure that the business or company continues to run smoothly after its most important people move on to new opportunities, retire, or pass away. Our attorneys are well-versed in this area of the law to integrate your business succession plans with your estate plans. Prob. Code §7001 et. seq.

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Whether or not your estate plan utilizes a trust, a will is a necessary component of an effective and complete estate plan. It ensures any property left out of the trust will be distributed according to your wishes. It is important to understand that a will alone does not avoid probate even if the will creates a trust. Prob. Code §6110 et seq.

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Our goal at LS Carlson Law is to maintain your legacy by maximizing your loved ones’ inheritance. Our estate planning division takes a hands-on approach to minimizing taxes that may result from estate taxes or gifts during your life. We strategically tailor your estate plan to accomplish your objectives and maximize the inheritance or gifts to your loved ones. See 26 U.S.C.A. §§ 1 et seq.; 26 U.S.C.A. §§ 641 to 692; 26 U.S.C.A. § 1014.

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At LS Carlson Law, we believe a complete and successful estate not only encompasses the personal estate and finances of the individual or community, but also their businesses. Our goal is to work with you to ensure your business interests serve their purpose, are properly transferred to avoid probate, and maintain your legacy as part of your overall plan. Prob. Code, § 5000, subd. (a), (b)(3); 26 U.S.C.A. § 1014.

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Real estate transfers are essential to effectuating the purpose of your trust. Failure to correctly title your real property, such as your residence, in a trust will require the opening of a probate process thereby undermining the purpose of your estate plan. Estate of Heigho (1960, 2nd Dist) 186 Cal App 2d 360, 9 Cal Rptr 196; see Estate of Heggstad (1993, 1st Dist) 16 Cal.App.4th 943, 20 Cal.Rptr.2d 433. It is important to work with an attorney familiar with transfer deeds and title issues to avoid unnecessary transfer taxes and take advantage of possible exclusions from reassessment of property taxes. Cal. Rev. and Tax Code §60, et. seq.

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Trusts are special agreements between you and a trustee so your estate is handled according to your wishes. Prob. Code, § 5000, subd. (a), (b)(3). There are multiple types of trusts to consider such as revocable grantor trusts, in which you also serve as the trustee during your life, and irrevocable trusts. Aside from title, revocable trusts allow very little change to your estate or the management of your finances. Prob. Code, §16001 Prob. Code, § 15800, subd. (a). On the other hand, irrevocable trusts can serve as effective tools to minimize estate taxes, control distributions to charitable organizations, control distributions to minor beneficiaries, or maintain your legacy. An effective estate plan should avoid probate, give the trustee power to care for your loved ones without court delays, and maximize inheritance for your beneficiaries. Prob. Code, § 16000.

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At LS Carlson Law, our real estate litigation attorneys have extensive experience securing our clients’ objectives in all manner of real estate related disputes, whether in or out of court. To maximize success, we first partner with our clients to understand the nature of their real estate related goals and objectives, after which we devise an innovative and aggressive approach to ensure that our clients achieve optimal results. The firm’s experienced real estate lawyers represent both residential and commercial property owners in a multitude of disputes that include:

• Nondisclosure
• Fraud
• Breach of Contract
• Negligence
• Property Damage
• Misrepresentation

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The business attorneys at LS Carlson Law provide its clients with a panoply of business/corporate transactional and litigation services. LS Carlson Law’s business litigation attorneys represent and counsel the firm’s clients in a multitude of business disputes, including:

• Breach of Contract
• Fraud
• Unfair Business Practices
• Trade Secrets
• Emezzlement
• Partner Disputes
• Employment
• Intellectual Property
• Misrepresentation

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A construction defect can significantly torpedo your property’s value. And, equally alarming, an ignored construction defect can result in heightened financial liability given the ongoing possibility of injury. Generally, a construction defect exists when the components of a home or building (or, the surrounding infrastructures) fail to perform as intended and/or fail to comply with applicable building standards. To that end, LS Carlson Law effectively and vigorously prosecutes matters that involve the following defects:

• Pools
• Structural
• Water Proofing
• Roof
• Foundation
• Patio

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UPDATED:

Notice: The Firm Remains Fully Operational During The COVID-19 Outbreak. Also, For All Potential Clients, We Are Offering Telephone Conferencing In Lieu Of In-Person Meetings.

To Schedule an Appointment, Please Call:
(949) 421-3030

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Your HOA’s CC&Rs lay out the rights and obligations the association and you owe to each other regarding your community. The CC&Rs constitute a binding equitable and legal contract between the HOA and the homeowners and address extremely important issues, such as:

• the board’s powers and authority;
• restrictions on the homeowners’ use of their properties;
• the HOA’s and the homeowners’ mutual maintenance obligations;
• assessment/lien rights and obligations; or
• the overall management of the community.

(Pinnacle Museum Tower Assn. v. Pinnacle Market Development (2012) 55 Cal.4th 223.)

The most common CC&R violations committed by HOAs include things like:

• failing to maintain the community’s common areas or perform necessary maintenance and repairs;
• failing to enforce the CC&Rs against other homeowners who are violating other members’ rights;
• failing to abate a nuisance;
• failing to properly manage the HOA’s finances;
• harassing homeowners; or
• failing to properly hold HOA elections.

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If you live in a condominium or planned housing development, then you live in a common interest development. There are four primary types of common interest developments:

• planned developments;
• condominium projects; and
• stock cooperatives.

Within those four categories, you’ll find a lot of different types of housing arrangements, from single family homes, condominiums, and townhomes, to high-rise apartments and co-ops. What all common interest developments in Florida have in common, however, is that they are governed by specific statutes (e.g., the Homeowners’ Association Act, Condominium Act, and the Cooperative Act).

Many HOAs, however, violate those statutes—sometimes because they don’t understand the law, and sometimes because their boards of directors just don’t care.

For example, many HOAs violate the law by doing things like:

• ignoring election or open-meeting requirements (sunshine laws);
• refusing to account for HOA funds;
• ignoring homeowners’ due-process rights; or
• refusing to operate the HOA in an open and transparent manner.

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If you live in a condominium, then the Condominium Act applies to you, your neighbors, and your Association. Many Associations, however, violate the Condominium Act—sometimes because they don’t understand the law, and sometimes because their boards of directors just don’t care.

For example, many Associations violate the law by doing things like:

• ignoring election or open-meeting requirements (sunshine laws);
• refusing to account for Association funds;
• ignoring condo owners’ due-process rights; or
• refusing to operate the Association in an open and transparent manner.

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Negligence is an unintentional tort (i.e., a wrongful act) where one fails to exercise the degree of care in a given situation that an otherwise reasonable person would exercise to prevent another from harm.

Both your Association and your neighbors have a duty not to cause you harm by engaging in acts that are unreasonable. And when you are damaged as a result of such unreasonable conduct, you may sue the wrongdoer for negligence.

Examples of negligent conduct in the context of Association law include things like:

• your neighbor’s carelessness causes a massive water leak to destroy your ceiling and a lot of your personal property;
• your Association failing to reasonably maintain the common elements, eventually causing more expensive repairs down the line; or
• your making a complaint to the Association about an urgent issue but the Association fails to address the problem.

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More frequently than many would like to admit, condo owners find themselves dealing with board members who like to tell other condo owners what to do. Sometimes, board members are just jerks who like to flaunt their authority by acting arbitrarily or capriciously, or who allow themselves or their friends certain privileges that they then deny other condo owners in the Association. Such selective enforcement of an Association’s governing documents is both illegal and actionable. (Prisco v. Forest Villas Condominium Apartments, Inc., 847 So 2d 1012 (Fla.App. Dist.4, 2003); White Egret Condo., Inc. v. Franklin, 379 So.2d 346 (Fla. 1979).)

Your Association is guilty of selective enforcement if it:

• denies an application for the improvement of one unit while having approved other similar applications;
• allows a director to approve something that benefits the director, but then denies others the same approval;
• ignores complaints about some members, while strictly policing others; or
• enforces certain rules, but not others, depending upon who the wrongdoer is.

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In the context of an Association, the “common elements” (referred to colloquially as the “common areas”) refers to areas owned by the Association as a whole, as opposed to being owned by any individual member of the Association. (Fla. Stat. § 718.103(8)). While many Associations share similar types of common elements (e.g., roads, swimming pools, tennis courts, clubhouses, landscaping, etc.), the types of common elements might differ amongst different Associations depending upon the type of community you live in. Given the expenses associated with owning such common elements, a lot of disputes arise between condo owners and Associations regarding things like the Association’s:

• failure to maintain or repair the common elements;
• failure to prevent another owner from taking over a portion of a common element for their own use;
• ignoring another condo owner’s destruction/damage to a common element;
• transfer of a common element to another condo owner; or
• destruction by the Association of a common element.

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“Neighbor Disputes” is a huge area of Association law and encompasses a wide array of disputes. For example, you may have legal claims against your neighbors (and in many cases, your Association) if they:

• trespass onto your property;
• engage in illegal activities (e.g., drug dealing, non-permitted activities, etc.); or
• cause loud/excessive noise (e.g., prohibited flooring, barking dogs, loud music, etc.) (Fla. Stat. § 718.106(3).)

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When it comes to harassment and discrimination, Associations in Florida are governed not only by the laws aimed at regulating Associations (e.g., the Condominium Act), but also by a whole host of other statutes, including federal and state civil rights acts (e.g., the Fair Housing Act, the Florida Civil Rights Act of 1992 and Florida’s Fair Housing Act). These statutes prohibit Associations from discriminating on the basis of race, gender, religion, sexual orientation, disability, etc., and they all require Associations to make reasonable accommodations to disabled people. While it’s true that you won’t see too many Associations today that still have racial or religious restrictions/quotas in their governing documents, many Associations today still run afoul of anti-discrimination laws when, for example, they:

• prevent a condo owner from having a comfort or serviced animal/pet (violates accommodation requirements);
• try to limit occupancy by redefining what constitutes a “family” under the law; or
• deny a disabled condo owner’s application to make a disability-related improvement to their property.

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Your Association’s Declarations (as well as its other governing documents) lay out the rights and obligations the Association and you owe to each other regarding your condominium community. The Declarations, for example, constitute a binding equitable and legal contract between the Association and the condo owners that are designed to address extremely important issues, such as:

• the board’s powers and authority;
• restrictions on the homeowners’ use of their properties;
• the Association’s and the condo owners’ mutual maintenance obligations;
• assessment/fine/lien rights; and
• requirements related to spending the Association’s money.

(Fla. Stat. §§ 718.102; 718.111)

The most common Declaration violations committed by Associations include things like:

• failing to maintain the community’s common elements or perform necessary maintenance and repairs;
• failing to enforce the Declarations against other unit owners;
• failing to abate a nuisance;
• failing to properly manage the Association’s finances;
• treating certain condo owners differently than others; or
• failing to properly hold Association elections.

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If a condominium association’s (“Association”) governing documents, such as its declaration of condominium (“Declaration,” but also called CC&Rs in most other jurisdictions), requires the Association to make repairs to certain items (e.g., common elements like shared roofs, walls, or plumbing), and the Association refuses to make those repairs, a condo owner may not only have the ability to force the Association to comply with its obligations, but in such cases, the Association will be liable for any damages a condo owner suffers as a result of the Association’s refusal or delay to make repairs.

For example, an Association might be liable to a condo owner if it:

• refuses to fix a small leak on a condominium’s roof which later results in water damage to a condo owner’s property;
• neglects to repair a community’s pool, thus depriving the members of its use during the summer; or
• discovers that termites have damaged certain structural components and the Association neglects to make the necessary repairs.

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If an HOA’s governing documents (e.g., CC&Rs, Rules, etc.) requires the HOA to make repairs to certain items (e.g., common areas or shared roofs, etc.), and the HOA refuses to make those repairs, a homeowner may not only force the HOA to comply with its obligations, but the HOA will be liable for any damages a homeowner suffers as a result of the HOA’s refusal or delay to make repairs.

For example, an HOA might be liable to a homeowner if it:

• refused to fix a small leak on a condominium’s roof, which later resulted in water damage to an owner’s property;
• neglected to repair a community’s pool, thus depriving the members of its use during the summer; or
• discovers that termites have damaged certain structural components and the HOA refuses to make the necessary repairs.

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When it comes to harassment and discrimination, HOAs in California are governed by a whole host of statutes, including the Fair Housing Act, the Fair Employment and Housing Act, the Unruh Civil Rights Act, and the Davis-Stirling Act. These statutes all prohibit HOAs from discriminating on the basis of race, gender, religion, sexual orientation, disability, etc., and they all require HOAs to make reasonable accommodations to disabled people. While you won’t see too many HOAs today that still have racial quotas in their governing documents, HOAs today still run afoul of anti-discrimination laws when they:

• prevent a homeowner from having a comfort animal/pet (violates accommodation requirements);
• bar the operation of a daycare center in a home (see Health & Safety Code section 1597.40);
• try to limit occupancy by redefining what constitutes a “family” under the law; or
• deny a disabled homeowner’s application to make an improvement to their property.

It’s also illegal for an HOA or resident to harass, harm, or annoy homeowners, although that happens more frequently than it should (see Brekke v. Wills (2005) 125 Cal.App.4th 1400).

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“Neighbor Disputes” is a huge area of HOA law and encompasses a wide array of disputes. For example, you may have legal claims against your neighbors (and in many cases, your HOA) if they:

• build an unnecessarily high fence adjacent to your property—e.g., a spite fence (Civ. Code § 841.4);
• allow their trees to drop branches or leaves onto your property;
• allow roots from their trees to invade and cause damage to your property;
• trespass onto your property;
• engage in illegal activities (e.g., drug dealing, non-permitted activities, etc.); or
• cause loud/excessive noise (e.g., barking dogs, loud music, machinery, etc.).

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In the context of an HOA, the “common area” refers to areas owned by the association as a whole, as opposed to any individual member of the association (see Civil Code section 4095). While many HOAs share similar types of common areas (e.g., roads, swimming pools, tennis courts, clubhouses, landscaping, etc.), the types of common areas might differ amongst different HOAs depending upon the type of community you live in. For example, if you live in an association mostly made up of condominiums, in addition to things like a swimming pool, roads, and landscaping, you might also see common areas consisting of roofs, hallways, staircases, carports, and elevators. On the other hand, if your HOA consists mostly of single family homes, you probably won’t see hallways, roofs, staircases, but you may see roads, clubhouses, parks, security gates, etc. Given the expenses associated with owning such common areas, a lot of disputes arise between homeowners and HOAs regarding things like the HOA’s:

• failure to maintain or repair the common areas;
• failure to prevent another owner from taking over a portion of a common area for his/her own use;
• ignoring another homeowner’s destruction/damage to a common area;
• transfer of a common area to another homeowner; or
• destruction by the HOA of a common area.

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More frequently than many would like to admit, homeowners find themselves dealing with directors/board members who like to tell other homeowners what to do. Sometimes, board members are just jerks who like to flaunt their authority by acting arbitrarily or capriciously, or who allow themselves or their friends certain privileges that they then deny other homeowners in the association. Such selective enforcement of an HOA’s governing documents is both illegal and actionable. (Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28.)

Your HOA is guilty of selective enforcement if it:

• denies an application for the improvement of one home while having approved other similar applications;
• allows a director to approve something that benefits the director, but then denies others the same approval;
• ignores complaints about some members, while strictly policing others; or
• enforces certain rules, but not others, depending upon who the wrongdoer is.

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Negligence is an unintentional tort (i.e., a wrongful act) where one fails to exercise the degree of care in a given situation that an otherwise reasonable person would exercise to prevent another from harm. (City of Santa Barbara v. Superior Court (2007) 41 Cal. 4th 747, 753–54.)

Both your HOA and your neighbors have a duty not to cause you harm by engaging in acts that are unreasonable. And when you are damaged as a result of such unreasonable conduct, you may sue the wrongdoer for negligence.

Examples of negligent conduct in the context of HOA law include things like:

• your neighbor changing the grading in his/her yard, resulting in water damage to your property;
• your HOA failing to reasonably maintain the common areas, eventually causing more expensive repairs down the line; or
• your making a complaint to the HOA about an urgent issue but the HOA fails to address the problem.

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If you live in a condominium or planned housing development, then you live in a common interest development. There are four types of common interest developments:

• community apartment projects;
• planned developments;
• condominium projects; and
• stock cooperatives.

Within those four categories, you’ll find a lot of different types of housing arrangements, from single family homes and condominiums, to high-rise apartments and townhomes. What all common interest developments in California have in common, however, is that they are governed by the Davis-Stirling Act (Civil Code sections 4000-6150). While all HOAs must comply with the Davis-Stirling Act (Villa De Las Palmas Homeowners Assn. v. Terifaj (2004) 33 Cal.4th 73), it is a well known fact that many do not.

For example, many HOAs violate the Davis-Stirling Act by doing things like:

• ignoring election or open-meeting requirements;
• refusing to account for association funds;
• ignoring homeowners’ due-process rights; or
• refusing to operate the HOA in an open and transparent manner.

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Non-disclosure, false representation, and concealment are all forms of fraud that frequently arise in the context of real estate disputes. Generally, you may have a claim for fraud if:

• there was an intentional misrepresentation;
• you justifiably relied on the misrepresentation; and
• the misrepresentation caused damage.

(Engalla v. Permanente Med. Grp., Inc. (1997) 15 Cal. 4th 951, 974.)

A defrauded party typically has a choice between suing for damages or rescinding the contract (i.e., unwinding the transaction). (Wilke v. Coinway, Inc. (1967) 257 Cal. App. 2d 126, 136.)

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Disputes between neighbors can result in various legal claims. For instance, you may have legal claims against your neighbors if they:

• build an unnecessarily high fence adjacent to your property—e.g., a spite fence (Civ. Code § 841.4);
• allow their trees to drop branches or leaves onto your property (Bonde v. Bishop (1952) 112 Cal.App. 2d 1);
• allow roots from their trees to invade and cause damage to your property;
• trespass onto your property (either directly or indirectly, such as by allowing water or sewage to enter your property) (Martin Marietta Corp. v. Insurance Co. of North America (1995) 40 Cal.App.4th 1113);
• engage in illegal activities (e.g., drug dealing, non-permitted activities, etc.); or
• cause loud/excessive noise that disrupts your right to the quiet enjoyment of your property.

In addition to a claim for damages, you may also have a right to an injunction, which would force your neighbor to do (or not do) whatever was interfering with your use of your property.

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Anyone who lives in a community governed by an HOA must follow the HOA’s governing documents, the most important (and well known) of which is the CC&Rs. While your HOA very likely has a duty to enforce its governing documents, if the HOA fails to do so, as a member of the HOA, you also have the right to enforce the governing documents. (Civ. Code § 5975.)

Typical HOA disputes arise in a variety of forms including:

• violations of the Davis-Stirling Act (e.g., failure to enforce, hold proper elections, provide accountings, etc.);
• failure to repair;
• violations of the CC&Rs or other governing documents (e.g., bylaws, rules, architectural guidelines, etc.);
• harassment by the HOA or a neighbor;
• discrimination by the HOA or a neighbor;
• neighbor disputes (e.g., fences, noise, illegal activity, and other nuisances);
• common area disputes (e.g., failure to maintain, misuse, destruction, or improper seizure of the common area, etc.);
• selective enforcement of the CC&Rs or other governing documents;
• breach of fiduciary duty (e.g., intentional or grossly negligent misuse of HOA funds); or
• negligence (e.g., damage to your property, misuse of HOA funds, etc.).

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A nuisance can be any substantial and unreasonable interference with your right to the use and enjoyment of your property. (McBride v. Smith (2018) 18 Cal.App.5th 1160, 1180.) The most common types of activities that give rise to nuisance claims involve:

• excessive noise;
• offensive odors;
• excessive dust or debris;
• illegal activities; and
• violation of privacy rights (e.g., cameras pointed in your direction).

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An encroachment occurs when a neighbor attempts to wrongfully claim ownership of part of your land by extending their property line onto your land. Such an encroachment may be intentional or unintentional—such as when your neighbor and you are legitimately confused as to the actual location of the property line.

When the encroachment takes the form of an actual structure being placed on your land (e.g., building, fence, tree, deck, etc.), or underneath your property (e.g., pipes, ducts, wiring, etc.), then your neighbor has trespassed onto your property. Although most encroachments are considered both a trespass and a nuisance, when the encroachment occurs solely in the air space above your property (such as when a neighbor constructs a deck that extends over your property, but isn’t resting on it), the encroachment won’t be considered a trespass, but instead will be deemed a nuisance. (Case v. Sisich (1929) 97 Cal.App. 106.)

Regardless of what form an encroachment takes, you need to take legal action to avoid a claim of adverse possession or prescriptive easement, or you might eventually lose ownership of part of your land.

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Trespass occurs when someone or something wrongfully enters onto land that you own without your permission. (Easton v. Sutter Coast Hosp. (2000) 80 Cal.App.4th 485.) When most people think of trespass, they imagine a person entering onto their land. And that is true—that is a trespass. But a trespass also occurs if someone else causes some thing to enter onto your land (e.g., water, debris, sewage, etc.).

Depending upon the circumstances, you may sue the trespasser for damages or for injunctive relief (i.e., a court order to stop the trespass).

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Adverse possession is a legal mechanism for someone else to take lawful title to all or part of your land. Although this used to happen more frequently in California a long time ago, it still occurs from time to time. A person can adversely possess someone else’s land if they:

• openly take possession or use the land;
• for at least five years;
• pay taxes on the portion of the land they’ve taken possession of or are using.

(Mehdizadeh v. Mincer (1996) 46 Cal.App.4th 1296.)

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Landlords have the right to evict tenants for a variety of reasons. Sometimes, however, a tenant refuses to vacate the property. When that occurs, a landlord’s recourse is an action for unlawful detainer.

Landlords typically want to evict tenants who:

• refuse to leave the property after expiration of a lease;
• refuse to pay rent even after receiving a three day notice to pay or quit;
• refuse to comply with a lease or rental agreement provision even after receiving a notice to perform or quit;
• cause a nuisance to neighbors;
• commits waste to the property (i.e., causes damage);
• maintains a nuisance;
• engage in illegal activities on the property; and
• remain in possession of the property after agreeing to leave.

(Code of Civ. Pro. § 1161.)

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It is illegal to cut down, remove, or otherwise injure any tree or wood on someone else’s land without the legal authority to do so. (Code Civ. Pro. § 733.) This is known as trespass to timber.

If someone cuts down, removes, or injures any trees or wood on your land, you have the right to sue for trespass to timber. And the statute ((Civ. Code § 3346) entitles you to a judgment for three times the amount of your damages (i.e., the value of the trees removed).

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If you have an insurance policy, then you’re called the “insured.” An insured’s lawsuit against their own insurance company for wrongfully denying coverage of a loss is sometimes referred to as a “first party bad faith claim” because the insured is claiming that their insurance company acted in bad faith by denying the claim.

A covenant of good faith and fair dealing is implied in every contract. If your insurance company denies you coverage without, say, conducting a proper investigation, you can hold your insurance company liable for breaching that implied covenant. (Egan v. Mut. of Omaha Ins. Co. (1979) 24 Cal.3d 809.) And one of the specific covenants that is implied in the law is that insurance companies must “give at least as much consideration to the welfare of its insured as it gives to its own interests.” (Id., at p. 818.)

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Sometimes, people who own real property together can’t agree on important things like whether or not to sell the property, how to use it (e.g., live in it, rent it out, leave it empty, etc.), or how much to spend improving it. When that occurs, the legal option available to the owner(s) is to file a lawsuit to have the court force a termination of the owners’ common interests in the same parcel of land (14859 Moorpark Homeowner’s Ass’n v. VRT Corp. (1998) 63 Cal.App.4th 1396.) This is called a partition, the intent of which is to have the court order the sale of the property on the open market, after which the proceeds will be divided in the manner reflected in the property’s title documents.

There are a number of things the court may need to take into account in allocating the sales proceeds, the most common of which is whether or not to impose offsets to compensate one or more owners for:

• shouldering more of the property-related costs, such as the mortgage, upkeep, maintenance, etc.;
• their portion of the rental value arising out of another owner having lived at the property rent free;
• their portion of the rental value arising out of another owner collecting rent from a third-party tenant and not sharing such payments;
• reimbursing one or more owners for their having made the down payment on the property; or
• reimbursing one or more owners for any damage to the property.

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Generally, property damage is defined as not only the physical damage or destruction of another’s real property (e.g., land or structures), but also their personal property, otherwise known as “chattel” (e.g., goods, equipment, etc.).

You may have claim to recover for property damage when it is the result of a wrongful act, such as:

• trespassing;
• negligence;
• causing a nuisance;
• conversion (i.e., civil version of theft); or
• trespass to chattel (i.e., interfering with you lawful possession of moveable personal property).

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A contractor can neither abandon a construction project without a good legal excuse (Bus. & Prof. Code § 7107), nor willfully fail or refuse to diligently perform on a construction project. (Bus. & Prof. Code § 7119.)

Contractors who engage in such wrongful conduct can be sued by property owners under several legal theories, including breach of contract. And depending upon the wording of the contract, property owners who prevail will not only be entitled to their damages caused by the contractor’s wrongful conduct, but also reimbursement of their attorneys’ fees and costs.

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In most cases, contractors are required not only to perform their work in substantial compliance with the project’s plans and specifications, but also to ensure that their work is in accordance with accepted trade standards for good and workmanlike construction. (Bus. & Prof. Code § 7109.)

When contractors fail in either of those duties, property owners will be entitled not only to the amount of money it cost them to bring their projects into compliance with the agreed upon specifications, but depending upon the wording of their contracts, reimbursement for their attorneys’ fees and costs as well.

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In most cases, contractors are required not only to perform their work in substantial compliance with the project’s plans and specifications, but also to ensure that their work is performed in accordance with accepted trade standards for good and workmanlike construction. (Bus. & Prof. Code § 7109.)

Those requirements include using building materials necessary to ensure that the project can be used as intended. Typically, property owners and contractors include the specific materials to be used on the projects in their contracts, and thus if a contractor fails to use the agreed upon materials, a property owner may sue the contractor under several legal theories, including breach of contract. However, even in cases where specific materials are not reflected in a construction contract, a property owner might still be able to pursue damages against a contractor if the materials a contractor used fell below what was acceptable under the applicable trade standards.

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Generally, property damage is defined as not only the physical damage or destruction of another’s real property (e.g., land or structures), but also their personal property, otherwise known as “chattel” (e.g., goods, equipment, etc.). A contractor hired to work on your property may be liable to you for damage to your property (real or personal), especially when they are guilty of:

• trespassing;
• negligence;
• causing a nuisance;
• conversion (i.e., civil version of theft); or
• trespass to chattel (i.e., interfering with you lawful possession of moveable personal property).

And depending upon the wording of the contract between you and your contractor, upon prevailing, you would also be entitled to reimbursement of your attorneys’ fees and costs.

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Contractors are required by law to abide by state and local building codes. (Bus. & Prof. Code § 7110.) State and local building codes require obtaining permits for a variety of improvements/construction. While some contracts leave the responsibility of obtaining the necessary permits to the property owner, most leave that obligation to the contractor.

In such cases, contractors who fail to obtain proper permits for their construction projects will be held liable to the property owner for breach of contract, and depending upon the wording of the contracts between them, upon prevailing, the property owners will also be entitled reimbursement of their attorneys’ fees and costs.

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Contractors are required by law to abide by state and local building codes. (Bus. & Prof. Code § 7110.) State and local building codes require obtaining permits for a variety of improvements/construction. While some contracts leave the responsibility of obtaining the necessary permits to the property owner, most leave that obligation to the contractor.

In such cases, contractors who fail to obtain proper permits for their construction projects will be held liable to the property owner for breach of contract, and depending upon the wording of the contracts between them, upon prevailing, the property owners will also be entitled reimbursement of their attorneys’ fees and costs.

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Contractors may not engage in any willful acts that results in substantial injury to another, especially fraud. (Bus. & Prof. Code § 7116.) Nondisclosure, false representation, and concealment are forms of fraud that frequently arise in the context of contractor disputes.

A contractor will be held liable for fraud against a property owner in cases where:

• the contractor made one or more intentional misrepresentations;
• the homeowner justifiably relied on the misrepresentations; and
• those misrepresentation caused the property owner damage.

A defrauded party typically has a choice between suing for damages or rescinding the contract (i.e., unwinding the transaction). (Wilke v. Coinway, Inc. (1967) 257 Cal.App.2d 126.)

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Misrepresentation takes two forms under the law—intentional and negligent.

Intentional misrepresentation is a form of fraud. Contractors may not engage in any willful acts that results in substantial injury to another, especially fraud. (Bus. & Prof. Code § 7116.) A contractor will be held liable for intentional misrepresentation against a property owner in cases where:

• the contractor made one or more intentional misrepresentations (i.e., contractor knew representation was false);
• the contractor intended the property owner to rely on the misrepresentation(s);
• the property owner justifiably relied on the contractor’s misrepresentation(s); and
• the misrepresentation caused the property owner damage.

(Graham v. Bank of Am., N.A. (2014) 226 Cal.App.4th 594.)

Negligent misrepresentation, on the other hand, does not require a property owner to prove that the contractor knew that the misrepresentation was false when made. Rather, the property owner only has to prove that the contractor made a representation without reasonable grounds to believe that it was true. (Hydro-Mill Co. v. Hayward, Tilton & Rolapp Ins. Assocs., Inc. (2004) 115 Cal.App.4th 1145.)

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A mechanics lien is a legal claim against a parcel of real property intended to secure payment to a contractor or supplier who wasn’t paid for work performed or supplies delivered to real property (e.g., your home). A mechanics lien can result in a forced sale of your property (i.e., a foreclosure). For that reason, the courts look very seriously at contractors who illegally maintain mechanics liens when they are not legally entitled to do so.

A general contractor (i.e., the contractor with whom most property owners have a direct contract) may not enforce a mechanics lien unless the contractor records a claim after completing its obligations under a contract AND before the earlier of either of the following:

• within 90 days after completing the work; or
• 60 days after the property owner records a notice of completion or cessation.

(Civ. Code § 8412.)

A sub-contractor, on the other hand, may only enforce a mechanics lien if it has provided a preliminary notice at the proper time and it seeks to enforce its lien after the sub-contractor ceases to provide work and before the earlier of:

• 90 days after completion of the work by that sub-contractor; or
• 30 days after the property owner records a notice of completion or cessation.

(Civ. Code § 8414.)

If a general or sub-contractor records a mechanics lien against your property outside of the times described above, or otherwise maintains such a lien illegally, you can force removal of the lien. And if you prevail in your efforts to force such removal, you may be entitled to your attorneys’ fees and costs.

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If a condo association’s governing documents (e.g., CC&Rs, Rules, etc.) requires the association to make repairs to certain items (e.g., common areas or shared roofs, etc.), and the association refuses to make those repairs, a condominium owner may not only force the association to comply with its obligations, but the association will be liable for any damages an owner suffers as a result of the association’s refusal or delay to make repairs.

For example, a condo association might be liable to a condominium owner if it:

• refused to fix a small leak on a condominium’s roof, which later resulted in water damage to an owner’s property;
• neglected to repair a community’s pool, thus depriving the members of its use during the summer; or
• discovers that termites have damaged certain structural components and the condo association refuses to make the necessary repairs.

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Your association’s CC&Rs lay out the rights and obligations the association and you owe to each other regarding your community. The CC&Rs constitute a binding equitable and legal contract between the association and the condominium owners and address extremely important issues, such as:

• the board’s powers and authority;
• restrictions on the owners’ use of their condominiums;
• the associations’ and the homeowners’ mutual maintenance obligations;
• assessment/lien rights and obligations; or
• the overall management of the community.

(Pinnacle Museum Tower Assn. v. Pinnacle Market Development (2012) 55 Cal.4th 223.)

The most common CC&R violations committed by associations include things like:

• failing to maintain the community’s common areas or perform necessary maintenance and repairs;
• failing to enforce the CC&Rs against other condo owners who are violating other members’ rights;
• failing to abate a nuisance;
• failing to properly manage the association’s finances;
• harassing owners; or
• failing to properly hold mandatory elections.

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When it comes to harassment and discrimination, associations in California are governed by a whole host of statutes, including the Fair Housing Act, the Fair Employment and Housing Act, the Unruh Civil Rights Act, and the Davis-Stirling Act. These statutes all prohibit associations from discriminating on the basis of race, gender, religion, sexual orientation, disability, etc., and they all require associations to make reasonable accommodations to disabled people. While you won’t see too many associations today that still have racial quotas in their governing documents, associations today often run afoul of anti-discrimination laws when they:

• prevent a condo owner from having a comfort animal/pet (violates accommodation requirements);
• bar the operation of a daycare center in a condominium (see Health & Safety Code section 1597.40);
• try to limit occupancy by redefining what constitutes a “family” under the law; or
• deny a disabled owner’s application to make an improvement to their condominium.

It’s also illegal for an association or resident to harass, harm, or annoy owners, although that happens more frequently than it should (see Brekke v. Wills (2005) 125 Cal.App.4th 1400).

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“Neighbor Disputes” is a huge area of association law and encompasses a wide array of disputes. For example, you may have legal claims against your neighbors (and in many cases, your association) if they:

• trespass onto your property;
• engage in illegal activities (e.g., drug dealing, non-permitted activities, etc.); or
• cause loud/excessive noise (e.g., barking dogs, loud music, machinery, etc.).

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In the context of an association, the “common area” refers to areas owned by the association as a whole, as opposed to any individual member of the association (see Civil Code section 4095). While many associations share similar types of common areas (e.g., roads, swimming pools, tennis courts, clubhouses, landscaping, etc.), the types of common areas might differ amongst different associations depending upon the type of community you live in. For example, as a condominium owner, in addition to things like a swimming pool, roads, and landscaping, tennis courts, and guard gates, you might also see common areas consisting of roofs, hallways, staircases, carports, and elevators. Given the expenses associated with owning such common areas, a lot of disputes arise between owners and their associations regarding things like the association’s:

• failure to maintain or repair the common areas;
• failure to prevent another owner from taking over a portion of a common area for his/her own use;
• ignoring another homeowner’s destruction/damage to a common area;
• transfer of a common area to another owner; or
• destruction by the association of a common area.

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More frequently than many would like to admit, condo owners find themselves dealing with directors/board members who like to tell other owners what to do. Sometimes, board members are just jerks who like to flaunt their authority by acting arbitrarily or capriciously, or who allow themselves or their friends certain privileges that they then deny other owners in the association. Such selective enforcement of an association’s governing documents is both illegal and actionable. (Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28.)

Your association is guilty of selective enforcement if it:

• denies an application for the improvement of one home while having approved other similar applications;
• allows a director to approve something that benefits the director, but then denies others the same approval;
• ignores complaints about some members, while strictly policing others; or
• enforces certain rules, but not others, depending upon who the wrongdoer is.

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Negligence is an unintentional tort (i.e., a wrongful act) where one fails to exercise the degree of care in a given situation that an otherwise reasonable person would exercise to prevent another from harm. (City of Santa Barbara v. Superior Court (2007) 41 Cal. 4th 747, 753–54.)

Both your association and your neighbors have a duty not to cause you harm by engaging in acts that are unreasonable. And when you are damaged as a result of such unreasonable conduct, you may sue the wrongdoer for negligence.

Examples of negligent conduct in the context of association law include things like:

• your neighbor began watering her porch (which sits directly above yours), resulting in water damage to your property;
• your association’s failing to reasonably maintain the common areas, eventually causing more expensive repairs down the line; or
• your making a complaint to the association about an urgent issue but the association fails to address the problem.

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If you live in a condominium or planned housing development, then you live in a common interest development. There are four types of common interest developments:

• community apartment projects;
• planned developments;
• condominium projects; and
• stock cooperatives.

Within those four categories, you’ll find a lot of different types of housing arrangements, from single family homes and condominiums, to high-rise apartments and townhomes. What all common interest developments in California have in common, however, is that they are governed by the Davis-Stirling Act (Civil Code sections 4000-6150). While all associations must comply with the Davis-Stirling Act (Villa De Las Palmas Homeowners Assn. v. Terifaj (2004) 33 Cal.4th 73), it is a well known fact that many do not.

For example, many condo associations violate the Davis-Stirling Act by doing things like:

• ignoring election or open-meeting requirements;
• refusing to account for association funds;
• ignoring homeowners’ due-process rights; or
• refusing to operate the HOA in an open and transparent manner.

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If an HOA’s governing documents (e.g., CC&Rs, Rules, etc.) requires the HOA to make repairs to certain items (e.g., common areas or shared roofs, etc.), and the HOA refuses to make those repairs, a homeowner may not only force the HOA to comply with its obligations, but the HOA will be liable for any damages a homeowner suffers as a result of the HOA’s refusal or delay to make repairs.

For example, an HOA might be liable to a homeowner if it:

• refused to fix a small leak on a condominium’s roof, which later resulted in water damage to an owner’s property;
• neglected to repair a community’s pool, thus depriving the members of its use during the summer; or
• discovers that termites have damaged certain structural components and the HOA refuses to make the necessary repairs.

Tell Us About Your Dispute: (949) 421-3030

Your HOA’s CC&Rs lay out the rights and obligations the association and you owe to each other regarding your community. The CC&Rs constitute a binding equitable and legal contract between the HOA and the homeowners and address extremely important issues, such as:

• the board’s powers and authority;
• restrictions on the homeowners’ use of their properties;
• the HOA’s and the homeowners’ mutual maintenance obligations;
• assessment/lien rights and obligations; or
• the overall management of the community.

(Pinnacle Museum Tower Assn. v. Pinnacle Market Development (2012) 55 Cal.4th 223.)

The most common CC&R violations committed by HOAs include things like:

• failing to maintain the community’s common areas or perform necessary maintenance and repairs;
• failing to enforce the CC&Rs against other homeowners who are violating other members’ rights;
• failing to abate a nuisance;
• failing to properly manage the HOA’s finances;
• harassing homeowners; or
• failing to properly hold HOA elections.

Tell Us About Your Dispute: (949) 421-3030

“Neighbor Disputes” is a huge area of HOA law and encompasses a wide array of disputes. For example, you may have legal claims against your neighbors (and in many cases, your HOA) if they:

• build an unnecessarily high fence adjacent to your property—e.g., a spite fence (Civ. Code § 841.4);
• allow their trees to drop branches or leaves onto your property;
• allow roots from their trees to invade and cause damage to your property;
• trespass onto your property;
• engage in illegal activities (e.g., drug dealing, non-permitted activities, etc.); or
• cause loud/excessive noise (e.g., barking dogs, loud music, machinery, etc.).

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In the context of an HOA, the “common area” refers to areas owned by the association as a whole, as opposed to any individual member of the association (see Civil Code section 4095). While many HOAs share similar types of common areas (e.g., roads, swimming pools, tennis courts, clubhouses, landscaping, etc.), the types of common areas might differ amongst different HOAs depending upon the type of community you live in. For example, if you live in an association mostly made up of condominiums, in addition to things like a swimming pool, roads, and landscaping, you might also see common areas consisting of roofs, hallways, staircases, carports, and elevators. On the other hand, if your HOA consists mostly of single family homes, you probably won’t see hallways, roofs, staircases, but you may see roads, clubhouses, parks, security gates, etc. Given the expenses associated with owning such common areas, a lot of disputes arise between homeowners and HOAs regarding things like the HOA’s:

• failure to maintain or repair the common areas;
• failure to prevent another owner from taking over a portion of a common area for his/her own use;
• ignoring another homeowner’s destruction/damage to a common area;
• transfer of a common area to another homeowner; or
• destruction by the HOA of a common area.

Tell Us About Your Dispute: (949) 421-3030

More frequently than many would like to admit, homeowners find themselves dealing with directors/board members who like to tell other homeowners what to do. Sometimes, board members are just jerks who like to flaunt their authority by acting arbitrarily or capriciously, or who allow themselves or their friends certain privileges that they then deny other homeowners in the association. Such selective enforcement of an HOA’s governing documents is both illegal and actionable. (Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28.)

Your HOA is guilty of selective enforcement if it:

• denies an application for the improvement of one home while having approved other similar applications;
• allows a director to approve something that benefits the director, but then denies others the same approval;
• ignores complaints about some members, while strictly policing others; or
• enforces certain rules, but not others, depending upon who the wrongdoer is.

Tell Us About Your Dispute: (949) 421-3030

Negligence is an unintentional tort (i.e., a wrongful act) where one fails to exercise the degree of care in a given situation that an otherwise reasonable person would exercise to prevent another from harm. (City of Santa Barbara v. Superior Court (2007) 41 Cal. 4th 747, 753–54.)

Both your HOA and your neighbors have a duty not to cause you harm by engaging in acts that are unreasonable. And when you are damaged as a result of such unreasonable conduct, you may sue the wrongdoer for negligence.

Examples of negligent conduct in the context of HOA law include things like:

• your neighbor changing the grading in his/her yard, resulting in water damage to your property;
• your HOA failing to reasonably maintain the common areas, eventually causing more expensive repairs down the line; or
• your making a complaint to the HOA about an urgent issue but the HOA fails to address the problem.

Tell Us About Your Dispute: (949) 421-3030

Similar to the requirement that HOAs must avoid engaging in selective enforcement of its governing documents, HOAs are also prohibited from granting certain homeowners preferential treatment. Examples of such preferential treatment might include:

• approving a board member’s application for an architectural improvement while denying a non-board member’s similar application;
• showing leniency to some members for unpaid HOA dues;
• permitting certain residents to violate the HOA’s parking rules; or
• waiving fines for some homeowners, but not others.

Depending on the party bringing the action (i.e., the HOA or the aggrieved homeowner), preferential treatment may be the basis of a claim for failure to enforce the governing documents or an affirmative defense based on selective enforcement.

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When it comes to harassment and discrimination, HOAs in California are governed by a whole host of statutes, including the Fair Housing Act, the Fair Employment and Housing Act, the Unruh Civil Rights Act, and the Davis-Stirling Act. These statutes all prohibit HOAs from discriminating on the basis of race, gender, religion, sexual orientation, disability, etc., and they all require HOAs to make reasonable accommodations to disabled people. While you won’t see too many HOAs today that still have racial quotas in their governing documents, HOAs today still run afoul of anti-discrimination laws when they:

• prevent a homeowner from having a comfort animal/pet (violates accommodation requirements);
• bar the operation of a daycare center in a home (see Health & Safety Code section 1597.40);
• try to limit occupancy by redefining what constitutes a “family” under the law; or
• deny a disabled homeowner’s application to make an improvement to their property.

It’s also illegal for an HOA or resident to harass, harm, or annoy homeowners, although that happens more frequently than it should (see Brekke v. Wills (2005) 125 Cal.App.4th 1400).

Tell Us About Your Dispute: (949) 421-3030

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There are a variety of organizational structures a person can choose from which to operate their business. For example, some people just start operating their businesses under their own names (e.g., “Smith’s Tax Services”). Those are called sole-proprietorships. Others partner up with someone else to operate their businesses (e.g., “Smith Bros. Tax Services”). Those are called “partnerships.” And still others choose to form business entities, like corporations or limited liability companies (“LLCs”), each of which is considered a separate “person” under the law. Choosing the correct business structure requires a business owner to consider a whole host of factors such as how the company’s income will be taxed, how to protect an owner’s personal assets, or how to best collect outside investments.

Regardless of how you choose to organize your business (e.g., as a sole-proprietorship, partnership, corporation, or an LLC), it is very likely that you’ll need to prepare certain documents to properly form your company, such as:

• fictitious business name statements;
• partnership agreements;
• articles of incorporation;
• bylaws;
• shareholder agreements;
• articles of organization; or
• LLC operating agreements.

The importance of having the agreements referenced above (e.g., partnership, shareholder, and operating agreements) in place in the event that things don’t work out between the owners cannot be overstated. Such agreements not only spell out each owner’s rights, duties, and responsibilities to the other owners and the company itself (in the case of a corporation or LLC), but they also address how to value each owner’s interest in the business, what the owners are allowed to do and not do, and what should happen in the event the business has to close.

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Simply put, a contract is a written or oral agreement between two or more parties to do or not do certain things in exchange for value. Whether we agree that you’ll paint my house in exchange for my paying you an agreed upon fee, or my company agrees to manufacture goods for your company to sell, such dealings are accomplished through contracts. For the most part, when it comes to businesses, most contracts are in writing. But while most companies rely on written contracts to conduct business, not all contracts are created equally.

Form contracts you might find on the Internet, for example, are rarely going to be useful beyond providing some of the basics (e.g., obtaining a service or providing a product in exchange for an agreed upon fee) and giving your company the appearance of protection, while neglecting a variety of important issues that a customized contract from a qualified business lawyer might otherwise address, such as provisions dealing with:

• limitations on liability;
• warranties;
• liquidated damages;
• late fees and interest;
• non-disclosure of proprietary or confidential information;
• acure rights;
• venue and jurisdiction; or
• attorneys’ fees and costs awarded to a prevailing party following a lawsuit.

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If your business is a corporation or LLC, then it enjoys a variety of perks that are unavailable to sole proprietorship and most partnerships, such as limited liability. In return, however, corporations and LLCs require owners to comply with a variety of legally mandated requirements to maintain those advantages. Corporate compliance, therefore, is also an important part of any entity’s operations.

Some examples of necessary corporate compliance include adhering to:

• Some examples of necessary corporate compliance include adhering to:
• meeting and minute requirements;
• financial reporting requirements; and
• licensing.

Non-compliance with certain corporate formalities can result in hefty fines, and in some cases the loss of the company’s limited liability status.

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When most people think of a business’s “intellectual property,” they think of things like:

• patents (intended to protect valuable inventions);
• copyrights (intended to protect, for example, great music or literature);
• trademarks (intended to protect well known business marks and logos); and
• confidential information and trade secrets.

Each of those represents a separate example of a company’s intellectual property, and depending upon the success of your business, such intellectual property could be priceless. Think of the biggest businesses you can, and then try to separate their logos, tag lines, and/or color schemes from their names. It’s impossible to picture, isn’t it?

Intellectual property is not protected simply because a company came up with it first. In fact, true protection of one’s intellectual property requires a business to take affirmative steps to secure ownership and control of the intellectual property, such as by securing a trademark, copyright, or patent, or by taking steps to secure the confidentiality of its trade secrets. When a business fails to protect its intellectual property, it risks losing the ability to prevent others from using it, and that could be financially devastating.

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The State of California is perhaps the most heavily regulated when it comes to controlling the relationship between employers and employees. Because most companies cannot operate without employees, any business that hopes to be successful must have a firm grasp on the myriad laws, regulations, and rules governing the hiring, compensation, and termination of employees in California.

One of the best ways to ensure that your company is compliant with California’s labyrinth of labor/employment laws is to obtain, use, and maintain a strong set of customized employment related documents, including:

• at-will employment agreements;
• employee handbooks;
• vehicle use policies;
• drug testing consent agreements;
• independent contractor agreements; and
• performance reviews.

When customized for your company, such documents can help you both avoid crippling penalties, as well as ensure that you consistently comply with the plethora of requirements relating to mandatory written notices/handouts regarding:

• proper classification of employees (e.g., exempt v. non-exempt / employee v. independent contractor);
• overtime;
• mandatory breaks;
• health and safety;
• job requirements/expectations
• harassment; and
• compensation, including payment of commission based compensation.

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Asset protection in the business context refers to strategies and procedures that can protect business owners from certain liabilities, taxation, seizure of assets, and creditor claims. Depending on the size of your business, taking proactive asset protection steps can mean the difference between having to close down shop and continuing with business as usual. One consideration that will impact your asset protection is choosing the right business entity to form.

Types of business entities that limit personal liability include:

• corporations;
• limited liability companies; and
• limited liability partnerships or limited partnerships.

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Almost every discipline in the equine industry (e.g., Thoroughbred racing, dressage, hunter/jumper, English, etc.) involves breeding. Disputes over breeding often occur when horse owners use poorly worded breeding contracts pulled from the Internet. Consulting with an experienced equine attorney to review or draft your breeding contract can help you avoid the most common disputes related to horse breeding, such as:

• failure by a mare’s owner to require testing of a stallion for hereditary conditions or diseases;
• the onset of a disease or death of a mare or her offspring shortly after birth; and
• failure by a stallion’s owner to make him available for breeding as agreed.

And since there is often no statutory right to attorneys’ fees for the prevailing party in such cases, inclusion of such a provision in a well-written contract could ensure that you can be reimbursed for your attorneys’ fees and costs.

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Equine ranches and ranch owners frequently engage in activities that result in legal disputes between any combination of landowners, horse owners, ranch employees, vendors, or visitors. Because horses are considered personal property, the vast majority of legal matters facing ranchers involve disputes over property rights and interests. Consulting with an equine attorney can ensure protection for a rancher in disputes involving:

• negotiating and enforcing lease agreements;
• drafting and implementing event agreements;
• defending personal injury claims; and
• prosecuting or defending property damage claims.

Again, since there is often no statutory right to attorneys’ fees for the prevailing party in such cases, inclusion of such a provision in a well-written contract could ensure that you can be reimbursed for your attorneys’ fees and costs.

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Purchasing and selling horses is an integral part of the equine industry, and a carefully worded purchase and sale agreement is equally integral to obtaining whatever it was that you bargained for. Given the significant investment associated with the purchase or sale of any horse, consulting with an equine attorney before finalizing any transaction can protect you from:

• fraudulent concealment of a known defect (e.g., a hereditary disease);
• material misrepresentations made during negotiations; and
• a material breach of the terms of a purchase and sales agreement.

And depending on the wording of the purchase and sale agreement, the prevailing party will not only be entitled to their damages caused by the other party’s conduct, but also reimbursement of their attorneys’ fees and costs.

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Because horse ownership and ranch management involve substantial financial investment and risk, maintaining adequate insurance coverage is essential. Even when a horse or ranch owner maintains adequate coverage, insurance carriers sometime wrongfully deny coverage of a claim. When this happens, an experienced equine attorney can analyze your insurance policy to determine if there has been a bad faith denial of a claim.

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Whether you are a horse owner, ranch owner, or you run an established stable, registering as a corporation or LLC provides you a variety of perks that are unavailable to sole proprietorships and most partnerships. Retaining general corporate counsel can help you comply with the legally mandated requirements to maintain the advantages of operating as a corporation or LLC and keep your company compliant with California’s labyrinth of labor/employment laws.

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When people think of franchises, they often think of the giant ones like McDonald’s, Wendy’s, or 7-Eleven. But such behemoths don’t make up the vast majority of franchised businesses out there. Most franchised business are much smaller than those giants and much less expensive to buy into. But, large or small, franchises share many things in common, the most important of which is the opportunity to sell goods or services with instant regional, national, or even international name recognition and a proven business model.

Franchises are governed by both federal and state law, but in the case of California, the state laws are much more “strict” than the federal franchise laws. In California, franchises are overseen by the California Department of Business Oversight and governed primarily by two separate sets of statutes: (i) the Franchise Investment Law (“FIL”) (Corp. Code § 31000 et seq.); and (ii) the California Franchise Relations Act (Bus. & Prof. Code § 20000 et seq.).

Under California law, a business meets the definition of a franchise (and therefore the franchisor—i.e., the “parent” company—must comply with the state’s franchise laws) if it: (i) grants someone a right to engage in the business of offering, selling, or distributing goods or services; (ii) under a marketing plan or system prescribed by the franchisor; (iii) where the operation of the business is substantially associated with an advertising/commercial symbol or mark (e.g., a trademark, service mark, or trade name) of the franchisor; and (iv) the franchisee (i.e., the person buying a franchised business) is required to pay a fee for the right to enter into (or conduct) the business.

Before deciding to franchise your business to others, or if you’re considering buying a franchised business to run, you should understand the myriad important issues, such as:

• what a franchise disclosure statement is and how to read one;
• how much control a franchisor should assert over various aspects of the business;
• provisions a franchisor can include in a franchise agreement and those that are prohibited by law;
• whether your business is operating an illegal franchise (i.e., you’re operating as a “licensor” instead of as a “franchisor”);
• whether a franchisor is in compliance with the FIL;
• what to do if you’re in a dispute with your franchisor or franchisee; or
• things you should consider before buying or selling a franchise.

Non-compliance with California’s franchise laws by a franchisor can result not only in massive financial penalties and damages, but in some cases, criminal prosecution.

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If an HOA’s governing documents, such as its declaration of covenants (“Covenants”), requires the HOA to make repairs to certain items (e.g., common areas), and the HOA refuses to make those repairs, a homeowner may not only have the ability to force the HOA to comply with its obligations, but in such cases, the HOA will be liable for any damages a homeowner suffers as a result of the HOA’s refusal or delay to make repairs.

For example, an HOA might be liable to a homeowner if it:

• refused to fix a small leak on a condominium’s roof, which later resulted in water damage to an owner’s property;
• neglected to repair a community’s pool, thus depriving the members of its use during the summer; or
• discovers that termites have damaged certain structural components and the HOA refuses to make the necessary repairs.

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When it comes to harassment and discrimination, HOAs in Florida are governed not only by the laws aimed at regulating HOAs (e.g., the Homeowners’ HOA Act, the Condominium Act, and the Cooperative Act), but also by a whole host of other statutes, including federal and state civil rights acts (e.g., the Fair Housing Act, the Florida Civil Rights Act of 1992 and Florida’s Fair Housing Act). These statutes prohibit HOAs from discriminating on the basis of race, gender, religion, sexual orientation, disability, etc., and they all require HOAs to make reasonable accommodations to disabled people. While it’s true that you won’t see too many HOAs today that still have racial or religious restrictions/quotas in their governing documents, many HOAs today still run afoul of anti-discrimination laws when, for example, they:

• prevent a homeowner from having a comfort or serviced animal/pet (violates accommodation requirements);
• try to limit occupancy by redefining what constitutes a “family” under the law; or
• deny a disabled homeowner’s application to make a disability-related improvement to their property.

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“Neighbor Disputes” is a huge area of HOA law and encompasses a wide array of disputes. For example, you may have legal claims against your neighbors (and in many cases, your HOA) if they:

• build an unnecessarily high fence adjacent to your property—e.g., a spite fence;
• block your view (when the view is specifically protected in your Covenants);
• trespass onto your property;
• engage in illegal activities (e.g., drug dealing, non-permitted activities, etc.); or
• cause loud/excessive noise (e.g., prohibited flooring, barking dogs, loud music, etc.).

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In the context of an HOA, the “common area” (or “common elements”) refers to areas owned by the HOA as a whole, as opposed to any individual member of the HOA. (Fla. Stat. §§ 720.301(2); 718.103(8).) While many HOAs share similar types of common areas (e.g., roads, swimming pools, tennis courts, clubhouses, landscaping, etc.), the types of common areas might differ amongst different HOAs depending upon the type of community you live in. For example, if you live in an HOA made up of condominiums, in addition to things like a swimming pool, roads, and landscaping, you might also see common areas consisting of roofs, hallways, staircases, carports, and elevators. On the other hand, if your HOA consists of, say, single family homes, you probably won’t see hallways, roofs, staircases, but you may see roads, clubhouses, parks, security gates, etc. Given the expenses associated with owning such common areas, a lot of disputes arise between homeowners and HOAs regarding things like the HOA’s:

• failure to maintain or repair the common areas;
• failure to prevent another owner from taking over a portion of a common area for their own use;
• ignoring another homeowner’s destruction/damage to a common area;
• transfer of a common area to another homeowner; or
• destruction by the HOA of a common area.

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More frequently than many would like to admit, homeowners find themselves dealing with board members who like to tell other homeowners what to do. Sometimes, board members are just jerks who like to flaunt their authority by acting arbitrarily or capriciously, or who allow themselves or their friends certain privileges that they then deny other homeowners in the HOA. Such selective enforcement of an HOA’s governing documents is both illegal and actionable. (Prisco v. Forest Villas Condominium Apartments, Inc., 847 So 2d 1012 (Fla.App. Dist.4, 2003); White Egret Condo., Inc. v. Franklin, 379 So.2d 346 (Fla. 1979).)

Your HOA is guilty of selective enforcement if it:

• denies an application for the improvement of one home while having approved other similar applications;
• allows a director to approve something that benefits the director, but then denies others the same approval;
• ignores complaints about some members, while strictly policing others; or
• enforces certain rules, but not others, depending upon who the wrongdoer is.

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Negligence is an unintentional tort (i.e., a wrongful act) where one fails to exercise the degree of care in a given situation that an otherwise reasonable person would exercise to prevent another from harm.

Both your HOA and your neighbors have a duty not to cause you harm by engaging in acts that are unreasonable. And when you are damaged as a result of such unreasonable conduct, you may sue the wrongdoer for negligence.

Examples of negligent conduct in the context of HOA law include things like:

• your neighbor changing the grading in his/her yard, resulting in water damage to your property;
• your HOA failing to reasonably maintain the common areas, eventually causing more expensive repairs down the line; or
• your making a complaint to the HOA about an urgent issue but the HOA fails to address the problem.

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Your HOA’s Covenants (as well as its other governing documents) lay out the rights and obligations the HOA and you owe to each other regarding your community. The Covenants, for example, constitute a binding equitable and legal contract between the HOA and the homeowners that are designed to address extremely important issues, such as:

• the board’s powers and authority;
• restrictions on the homeowners’ use of their properties;
• the HOA’s and the homeowners’ mutual maintenance obligations;
• assessment/fine/lien rights; and
• requirements related to spending the community’s money.

(Fla. Stat. §§ 720.303; 718.111; 718.112; 720.305)

The most common Covenant violations committed by HOAs include things like:

• failing to maintain the community’s common areas or perform necessary maintenance and repairs;
• failing to enforce the Covenants against other owners;
• failing to abate a nuisance;
• failing to properly manage the HOA’s finances;
• treating certain owners differently than others; or
• failing to properly hold HOA elections.

Tell Us About Your Dispute: (949) 421-3030