Partition Actions and Evictions, with Real Estate Attorney Roy J. Jimenez

0:00 Really excited today to have an attorney who is really one of the leaders in litigation in the real estate field which covers evictions, partition actions, and quiet title actions. Roy Jimenez, who's a partner at TLD Law. Roy, thank you so much for joining us today.

0:15 Yeah, thank you for having me. And I noticed as I got ready for this that you recently got appointed to I'm sure it's very prestigious just the way with the post was and the likes and the and the comments on it. You got appointed to the American Board of Trial Advocates or ABOTA. Tell me what that's all about.

0:32 Yeah, ABOT is a great organization of experienced trial attorneys. Their focus is ensuring the right to a jury trial for every you know American citizen. In order to be a member of a BOD, you have to try so many jury trials all the way to verdict before you can be eligible for membership. And so I was sworn in last Thursday. And so I'm excited to be part of this group of experienced attorneys

0:58 Of actually taking trials to verdict of jury trials. And I sorry I couldn't hear you. And this is this is a specifically based on your volume of trials to verdict that are jury trials.

1:12 Yes, that's correct. Bench trials don't count just a judge. Okay. And so what I understand like 90% of jury trials end up settling or not going to court. So you're minority of minority to get it to that number or I should say you have a you're specialist of a specialist to get to that number. So talk a little bit about what do you think makes you different than attorneys that you end up taking jury trials to a decision at the end versus settling. Do you feel like is about persistence? Is about hanging in there? What do you think it is that makes a difference for you?

1:43 Yeah, I mean I think even my cases 90% of them settle. So I don't go to jury trial all the time. That's why it's taken me so many years to qualify for a BOD. So I think most cases, most attorneys, they do settle about 90% of the time. And I'm no different than that. The makes me different is that I'm used to trying cases and I'm not I'm comfortable being in front of a jury. Some attorneys don't really like trying cases and they settle sometimes prematurely.

2:10 Got it. One of the areas that in my experience I guess in general 90% of trials settle anyhow but even though we get to trial I launched this podcast fractional interest because so often I was getting two parties that had an interest in a property as a result of a probate most commonly in my case you know maybe two errors and somehow there was no trust or maybe it was not properly worded one wants to sell one doesn't want to sell and so many times they sell it at a disadvantage because if you're going to buy with some unknown partner, you're not going to pay the full share retail value most commonly at probate court. I saw that happening over and over again. And then one day discovered the partition action as a right by an owner who owns a minority partner. Can you kind of give us a summary of what is a partition action and what are the rights of an owner who maybe owns 50% or less 30% 25% of a property? Can they force other party to sell? Is that what the partition action provides for?

3:12 Yes. Yes. So, partition action is a civil cause of action. You file a complaint for partition and it forces basically the sale of a piece of real estate either to the other party or it can be sold on the open market depending on the financial situation of the other co-owner. But yeah, the judge has the inherent power to force the sale of a property even if somebody doesn't want to sell. So you have two parties and one might even own majority. But if the minority partner wants to sell, there's a process by which the majority owner either has to agree to sell on the open market or buy them out at a fair price. But either way, even minority has a minority owner has those rights.

3:54 Yes, minority owner still has those rights. The court has it's called a court of equity. Back in the day, you know, in England, there was a courts of law and there's courts of equity. Here in America it's just one court and the judge has equitable rights to do things like that. So yes they can force to sell even if it's minority shareholder

4:16 Because obviously there's no let's say agreement between the two for the judge to interpret from a legal point of view. It's just merely you own property you want to sell it you have the right to sell it and the court just provides a process to sell things up.

4:28 Yes that's correct. In my experience with this, you know, I had a number of these in probate because obviously they're not planned out properly to begin with. That's why you're in probate. And, you know, one of the partners doesn't want to sell or wants to force the other one to buy it on the cheap, to sell it on the cheap. And I try to explain to him, you don't really have that right that, you know, the partition law will force some sort of equitable answer. And it seems like, you know, the attorneys talk and then there's a letter goes back and forth. And finally, it seems like goes to the filing before finally the other party realizes, okay, now I either have to write a check to an attorney to defend this case or I'm going to lose anyhow and I think lose attorney fees, expenses, and such as well. Is that's been my experience I want to say five or six times. It's always the exact same pattern. Is that the common pattern on partition auctions? Yes, it's that's exactly the pattern that it follows. I always advise my clients at the beginning that you would try to you should try to work out a deal with your co-owner because both of you are going to spend all the equity of the property on attorney's fees. So the sooner they can reach out an agreement, you know, the less money they're going to spend on attorney's fees.

5:39 There's really no upside, I would think, to fighting it because you're going to I believe I mean I'm not an attorney. And of course every case is different, but in general you can't force somebody to keep a property or sell it to you on the cheap. There's no such right to do that. And so inevitably if you fight it, you're just going to end up losing I think in most cases.

5:58 Yeah, that's true. The reason why people fight or varies like let's say one of the parts one of the parties lives in the property and that's their home and so they don't want to give up that opportunity to live there maybe if because it's in a school district that they like or something that's unique about the property but they can't afford to buy out their other partner. So that's when they tend to fight and try to drag their feet because they don't want to move and, you know, they don't have the ability to buy out.

6:28 As long as it's cheaper to fight legally than to pay rent somewhere else, then people, my experience is they're going to stay in the house. The only way to get them out is to make them pay for it. Now, in probate cases, if it's an error, not only do they lose the money, but it comes out of their potentially out of their airship. And that's what I try to do in the middle is try to help people understand you can fight this but you're going to lose a lot of money in the long run. So and I know your firm does a lot of probate work. We've been past interviewed other attorneys from your firm. So how often does it come up where you have some sort of a partition or challenge in this area that involves a probate case?

7:03 Well I don't do probate. You know those are my partners. They do the probate cases. And so once the probate is resolved and if the parties are still in co-ownership then they'll bring me into the case to h handle the partition action but most of the time it's resolved in the probate lawsuit itself because like you said there's they could lose their inheritance and so it usually doesn't come to me from probate very often.

7:28 One of the areas that this crosses over into is eviction. I know you your firm does a lot of evict a lot of eviction work. I know you head of the real estate department. Are you over all that the eviction process has gotten so much more difficult, but it seems that if the person you're trying to get rid of has some interest in the property, at least it creates, you know, you can collect some money at the end of the day if you have to get rid of them.

7:52 Right. Right. Yeah. Yeah. Ever since co and the new California Tenant Protection Act, there's a lot of more rights that tenants have than they did before 2020. And it's much more difficult to evict people. Before 2020, I didn't really do too many evictions because there's companies that could do them on, you know, really cheaply

8:11 And you I just wasn't competitive with them. But now with it being more complicated, it requires more attorney work.

8:19 You know, right as I started to happen, I interviewed one of your partners who works in the eviction parts and she said exactly that up until now eviction mills really ruled the business. And I know today when people say to me, "Oh, I have an eviction attorney I've used for years." I say, "It's probably the wrong guy by definition because whoever you used five years ago is not the right firm today." is that kind of an accurate kind of overview of the situation? It seems to me that every eviction is going to be if you're going to go through the process, it's going to be a long dragout process.

8:52 Yes, that's correct. I mean, if it's a simple eviction where the tenants just not paying rent, yeah, I'll refer my clients to one of the mills because they can do the eviction cheaper than I can do it. But if it's if it's like the city of LA or something that's more complicated, maybe they're paying the rent, but there's another reason for the eviction, that's when I get involved and I have to do a deeper dive, more analysis, and try to figure out a creative way to have the tenant removed. What would you say would be the most common things that you can success is interesting filing an eviction auction and successfully removing a tenant? What are some of the things that you would say are most common that will result in a successful eviction even in the city of Los Angeles? Or is there anything?

9:34 Yeah, I mean the easiest way is if they're breaching the lease agreement. So that's by not paying rent or there's some kind of some rules that they're violating. That's the easiest way whether you're in the city of LA or any place else. But even in the city of LA, if you don't pay rent, you still have rights and you still have to go through a process and you work with the city with the eviction, filing forms and notices with the city. It's not a common situation as it is in other places outside of the city of Los Angeles.

10:05 What kind of time period do you think you're talking about? If you know, I know I saw a post you guys did about I laugh. I saw it. Having problems with evictions. Well, who is if [laughter] you're in the landlord business? The answer is obviously yes. Spoiler alert. But the challenge is getting them out. What you know I you know I don't know how to say this. I don't want to get too politicized about it, but I guess the answer is this process getting more challenging all the time when a when a owner contacts you with an eviction and let's say it is a you know a fairly straightforward they're violating the lease. It's in the state of Los Angeles and they say well how long is this all going to take? What's it going to cost me? What's your general advice or do you have some default answer?

10:55 Yeah, I mean it all depends on the facts of the case. Everything's a little bit different. But if they're not paying rent into the city of LA, then I would probably, you know, quote, you know, considerably take about at least eight weeks to have the tenant removed and going through the process. And all of that can change depending on whether they have an attorney or not, the tenant.

11:15 And are they low income? Do they have health issues? Will they qualify for a free attorney through a public agency? All of these things factor into how long it's going to take and how expensive it's going to be. So, every case really is its own analysis. But for somebody not paying rent in the city of LA and they're just, you know, 30 to 40 years old, you know, I would say about 8 weeks. If we have to go through trial, then it's going to be probably about $7,000, you know, could be more. If they have a free attorney and they file motions and they want to really drag it out, it could be $30,000. But it all depends on the situation of each particular case.

12:02 When I go to Stanley Moss Court and I happen to be at times on the sixth floor there's a probate department, but then that's also where the eviction hearings are held like a little further down the aisleway. You know, I happen to dress, you know, like an attorney. Wear a suit, tie, you know, look professional. But anybody who's not dressed like that gets introduced to a free legal service, I watch it two or three times from the time they get the elevator until they get into where those rooms are. So, it seems to me that there's free legal service available for virtually every single tenant who has a dispute that there's so much free legal service that they're soliciting clients. Is that an accurate assessment

12:45 Or is that just Stanley Moss that happen to be there that location happens to be more Milton and other places are less so? Yeah, I mean I believe they I'm not sure how they actually work but I believe they have like a sliding scale. So depending on your income, if you have no income, then you get a free attorney. If you have, you know, a decent income but not a certain threshold amount, then you have to pay partially for the services. But I'm not really sure how their business model works. But I'm sure whatever the legal services are less than paying rent. It just seems to me that's the problem. If they're paying $1,000, $2,000 a month for an attorney and the others pay three or $4,000 a month for rent. How long would you do that? Well, as long as you could, I guess, if you're that kind of a person.

13:23 Yeah, exactly. That's why those factors come into play when you're kind of giving your client a heads up on the beginning of a case, how long it's going to take, how expensive. It just seems so important to give people I think give your clients a proper a proper heads up and estimate and that I think that's the breakdown when I talk to customers clients are happy. It's always one they didn't get you know a proper setup in the first place and two didn't stay in touch along the way and you know as a real estate agent I try to stay in touch and probably buy some of that grease to kind of make you make the gears work a little better. So, you know, I know that you handle real estate litigation and so we talked about, fractional interest a little bit and tenant evictions. What other common areas that cause people to go to trial for real estate disputes? What are the most common real estate disputes in your department? The two other areas that are very common are quiet title actions where somebody's claims to have a larger ownership interest in real estate or it could be the location of an easement. So they're just trying to get the court to determine what percentage of ownership each one owns and possibly the location of an e of an easement. The other area that I work out quite a bit in real estate are breach of contract cases where a seller of residential property doesn't properly disclose the defects in a in a home.

14:52 And so those are very common you know after the first rain of the following year the roof is yeah that's kind of a basic one but yeah those are the two other areas.

15:05 So let's go back. Quiet title is where somebody has a claim is making a claim on property and the quiet action is to squash their claim. What's the fact pattern most common when you see those kind of cases being filed?

15:18 Yeah, those ones usually involve usually a couple that was romantically involved and one person was on the loan and on title, the other person was not. And after years of paying the mortgage and taxes and insurance, they break up. And so then the person that's leaving is saying, "Well, I want my interest in the property." Like, "Well, you're not on title. You don't you don't own anything." And so we file a lawsuit to quiet title to make sure that person has their rights after they pay the mortgage, taxes, and insurance.

15:50 I see that coming up more and more, and I see it also in probate more and more where somebody claims the status of a de facto spouse. They live there, they split their expenses. I mean, it is sad. I mean I you know we're human beings and there's the law and then there's also you know the human side of this which is I imagine if you live with somebody 10 20 30 years you pay half the expenses the house appreciates half million dollars while you're living there I can understand why somebody would be severely disappointed do those nonofficial relationships have a legal status in terms of ownership of the property ever?

16:23 Yes. If you can prove that there was an agreement to have joint ownership and the person not on title substantially performed that agreement by paying the taxes and mortgage and insurance then you can prove that there was an oral agreement. Generally oral agreements aren't enforceable for real estate transactions. But when you have substantial performance that's an exception to the statute of frauds. So the substantial performance would look like maybe contributing money to a joint account or writing the check directly for the mortgage or taxes something like that.

16:55 Yeah, it's definitely like a forensic accounting issue where you have to go and trace the money and provide the documents to show the substantial performance.

17:06 Sometimes they'll pay they'll pay for construction to add on a second story or they'll do something substantial for the property and that's traceable. And so then that kind of leads the court to well say, "Well, nobody's going to do that unless they really feel like they're a substantial owner. That person is not accept it unless they kind of acknowledge that and therefore that's evidence of an agreement of some sort."

17:26 Correct. Fascinating. Fascinating. I know there was a famous divorce case years ago Marvin.

17:35 Yeah. Lee Marvin, right? One of my favorite movies of all time, by the way, Capaloo, where their divorce case as to whether or not they were married or not. And it just seems like that issue seems so unclear even still. But I guess the answer is each case has its facts and you as the attorney your job is to get the facts together best represent your client's interests whether it be to acknowledge or to disavow the relationship.

18:00 Right. Right. And yeah, Marvin agreements are even more complicated just because it sometimes it involves more than just a piece of real estate. That could involve

18:09 Support and other issues that would normally be resolved in a family law court, but they're being resolved in Stanley Mosque in the civil department because they weren't married. It was just a contractual arrangement.

18:23 Famous one of the famous cases that people know the name and the nature of the issue, but nobody knows really what the law. I mean, lay people don't really know the law. Maybe as an attorney, you learn at law school or along the way, but for the rest of us, I just know it's area to be very careful about and look for documentation of some sort before you start getting too far down the road with it. Let's talk about easements because that's another one that as a real estate agent, we get a preliminary title report, but I noticed that two things. One, there's more easements now than where I start in the business. And second, tile companies seem more quick to ask me for verification of an easement or they come out want to do a not assessment, but they do a survey of the property to verify easements more and more. Now, I'm sure that's relation or in reaction to lawsuits related to easements. What's a most common easement pattern that you see as an attorney? Well, usually it's well, in the commercial sense, it's the use of a parking facility and for whether they're allow their tenants to or their customers to use the parking lot or some right of way for deliveries. That's a common easement dispute in the residential sector. It's usually somebody has an easement in order to gain access to somebody else's backyard or to their own backyard through somebody else's property. Those are commonly fought. And especially now with the different cities having different setback requirements.

19:53 Every inch of land is valuable, right? And so they want to make sure they have enough square footage in order to qualify to do a home expansion.

20:04 Right. And then the last you mentioned was about posttransactions defects in the property, seller not disclosing. So it seems to me when I see these cases, it almost always involves a couple common things. One is a real estate agent not doing the basics. Like we have so many forms of disclosures now that you know if you just follow the process and fill out all the forms it kind of forces you to at least disclose or pretend to disclose what you know of the property and in the cases I've seen nothing was done they file the TDS they didn't file the seller disclosure is that the common fact pattern that somebody just didn't maybe it was a private sale they didn't really provide those kind of documents

20:49 No the in my experience they do provide the TDS and they provide the seller's questionnaire, but it's all says no. There's nothing disclosed on them. They're just signed and they're basically blunt documents. So, that's always a red flag for me when I have a new client come in and go, "Well, send me the TDS and the seller's questionnaire and I can tell whether there was fraud here or not because, you know, a good real estate agent is going to advise their client to properly fill it out and take their time to do it, you know, correctly." And a lot of times, and what I've seen, because that's I see the fat stuff, a lot of times I see is that the agent just gave them a form and just said sign it. So,

21:29 You know, it's interesting you say that and I, you know, don't dispute that happens a lot. I will say in my defense and they just like me that I do tell sellers, hey, this is the time to present whatever information you have to protect yourself. This is not the time to be shy or, you know, embarrassed about defects. Take some time. If you need me to walk you through it, I can walk you through it. You know, with technology now, when you e-sign things, you literally can sign, you know, 100 pages in about five minutes if you just keep clicking. And yet, you know, I can't control what the seller does. I try to encourage them to be thoughtful about it. So, I guess, you know, the to me the forms have stopped being

22:11 Anything other than filling up the file with potential mistakes of what you forgot to fill in because there's so much

22:19 Sellers only allow so much time to do it, I think, and then aren't complete. How beneficial is it for a seller to do a professional inspection? Now, that doesn't get them off the hook for reporting prior experiences, right? If the roof leak two years ago, you still have to disclose it. But if I did an inspection, a roof inspection, does that at least mitigate my risk as a seller?

22:44 Yes, it helps mitigate the risk. Basically, you know, when you when you sell a property, it's sold asis. And so, whoever is buying the property should be aware that well, this is property being sold as is. And so, they want to do their own inspection, the buyer, but the seller, you know, also does want to come back later and have, you know, a lawsuit filed against them. So, even if the roof leaked two years ago, and they thought it was fixed, then, you know, having a roof inspection after the fact really would kind of shield the seller from liability

23:14 Because they did the work, so they assumed, oh, I forgot. Yeah, we had we fixed this, so it kind of slipped my mind. I guess the court's going to be a little fair if he went through the trouble of an inspection versus, "I just forgot and form blank." that looks like you're just not helping the buyer be aware and do their own inspection or pointing them that inspection,

23:33 Right? I always advise my clients that are sellers to when in doubt disclose. So, a lot of times people are afraid to disclose too many things, but you know, most markets, you know, people really want the house because of the school district, because of the neighborhood. So, they're going to buy the house even if the roof leaks, right? They know what they're getting themselves into and they'll fix it themselves. They want the house. So, it's always better to overdisclose rather than underdisclose.

24:01 I agree 100%. Everybody, any real estate agent listening this 100%. I just find there's nothing you can't disclose that will blow up your deal, but not disclosing is going to be a nightmare if you if it comes up. And often things come up. I had a case where when I was newer in the business, I didn't know that the death often puts the place of death on the death certificate. So nowadays I just ask for the deathert but I used to ask the customers you know the disclosure they may die in the property in the last three years and they would just check no and I had a customer who didn't want to fill out his forms for the longest time and I didn't realize the reason why was he didn't want to disclose in his mind emotionally not dollar and cents wise because he was very wealthy he didn't really care he just didn't feel comfortable checking the box that his mother died in the house and it was really lit like the week before close of escrow when he finally disclosed it and the buyer's agent was rightfully really upset at me at the at the seller. I kept saying to him, I'm working on I'm working on it. That's all I can do. But it's one of those things where I do think and the deal went through. The buyer guest could have cancelled and could have perhaps sought damages, but like to your point, they wanted the house. It was a great house. It was a good deal, great area. They somehow made peace with the fact the mother passed there and went ahead. So, I think you're right. Disclosing always is the best policy. And yeah, thank you for pointing that out.

25:21 So you obviously see, you know, in the course of your business, of course, a transaction can come to you regardless of a good real estate agent or a bad real estate agent. I mean, sometimes you're just on the wrong side of that deal and you get kind of dragged into it. What are the common practices that you see of the real estate agents that you look at them and say, "This is somebody who knows what he's doing and he's helping protect his customer versus somebody who's just stumbling and things kind of fall apart."

25:48 Yeah. I think the agents that take their time as well to fill up the AVID are the ones I can tell this agent did their job and they made a conscious effort to go through each room and make observations. So, when I see a good AVID, then I know that at least the real estate agent did their job and it was probably the seller themselves, not their agent, that caused the problem with the failure to disclose.

26:12 Oh, that's a good reminder for me. I'm I am a little sloppy on my bids. I have to admit I could be able more diligent, but it just seems to me that yeah, I mean there's no danger in disclosing stuff that you see and that's what they're paying for. Sometimes I look at things and think who would care, but it's not for me to decide, I guess. So, well, very good. Well, look, Roy, I really appreciate the time you spent today. I know you're busy. You your firm or you somebody is posting, you know, a lot of content on LinkedIn and good content. That's actually that's where I met your firm was Jen Sawday I think posted something on there about evictions back right when that transition happened and she's been a real good friend of my business and program overall. I really do appreciate your time. Somebody wants to get a hold of Roy. It looks like the best way is to catch him on LinkedIn and then down below we'll put the contact information. When people are considering, just to understand the inflow process for your business, when people are considering a lawsuit or legal action in real estate, you know, what's the intake process? Do they call you? Is there some sort of a consultation or how do they get to you? What's the process look like?

27:16 Yeah, they can just contact me via email or phone. I have my assistant, my intake person. She will return the message. We have to run a conflict check before we meet for the initial consult. So they'll run the conflict check, ask for the relevant documents and then schedule a time that's convenient for both sides to meet. And for the associations to understand what that means, it the conflict check is something that's unique to the larger more successful law firms. The small guy who works out of a little closet on the main boulevard, he only does a case a year. Doesn't have many conflicts. TLD Law is a very successful firm with leaders in the industry. As a result handles a lot of people and so the first thing you do is make sure they don't have any conflicts of having work with people on the other side of your transaction and then second having an intake person is efficient as a real estate agent I try to get the documents together for my client to send it to the attorney so they can shorten down the research time and make the right decision right I know you're real busy thank you so much your time today I really appreciate your help and I think we learned quite a bit today about both partition actions and the evictions and the other parts of the real estate transaction

28:20 Okay thank you for having me it's been a pleasure and for this is the Fractional Interest Podcast. We get together and issue new episode with attorneys that specialize in the space, fractional interests, partition actions and related matters in probate and civil action. If you have any questions, if you want to be interviewed on this subject, please reply to me, send me an email. If I can help you with anything in real estate, particularly probate related, Bill Gross probate on social media. As always, make today your best day ever. Thanks so much.