Real Property Litigation - all types

Real Property Litigation

Samira Kermani has built up extensive experience litigating various types of real estate matters. Real Property Law is our area of specialty, which is why our colleagues —who do not practice real property law— often seek us out for our expertise. Samira co-counsels with other attorneys and mentors them in real estate litigation matters. Samira knows unique areas of real property law inside and out, areas which are not often not seen by generalists or attorneys who do not focus on real estate law.

Disputes over real property can get acrimonious. It’s a fight over money, ownership rights, or the preservation of a professional reputation. Emotions can run high. Not every single fight is worth fighting. But when it is, we are poised and ready to seek compensation for our clients in court or to vigorously defend them. We structure every litigated matter, from inception, as if we are ultimately going to trial. That is the best way —we believe— to seek the highest level of compensation for our clients’ damages or to defeat our opponent’s case.

The following are just a sampling of our practice areas.

Failure to Disclose Known Material Defects - Disclosure Fraud

Real estate agents, brokers and sellers of real property must disclose all known material defects to a buyer.

If you have purchased real property and discovered material defects that your agent or the seller were aware of, but negligently or intentionally failed to disclose to you, you may have recourse.

By law, real estate agents and brokers owe their clients a fiduciary duty of care. An agent representing a buyer must put him/herself in the buyer’s position with respect to material issues related to the value and desirability of the property. That’s California law. Some agents ignore this law. Sometimes, it’s because the agent was “sloppy” - negligent. Other times, the agent intentionally refused to and failed to do what s/he was obligated to do. In certain situations, that constitutes “fraud” or “constructive fraud.” When the Court finds “Fraud,” that may open the door to a claim for “punitive damages.”

As a litigator for 26 years, and a practicing real estate broker for 18 years (who has actually sold residential and commercial properties for a living) and an Expert Witness on brokers’ duties, I have been there and done that. I know precisely what a real estate agent is supposed to do when representing a buyer or seller - I know exactly what to do when an agent did not.

I defend agents in malpractice cases (believe or not, most agents work very hard at doing the right thing). I also sue agents when they fail to perform their duties and cause significant damages to their clients.

Specific Performance Lawsuits

Your offer was accepted. You opened escrow. Now, the Seller wants to back out of the deal. What do you do?

There are many traps for the unwary in this hyper-technical area of the law. One false move, and you forfeit your legal rights.

Most purchase agreements contain a mediation requirement whereby if you fail to mediate prior to filing a lawsuit or a demand for arbitration, you may forfeit your right to attorneys fees if you prevail. But, did you know there are exceptions to that requirement? In a case where the Seller is refusing to honor the contract, that Seller is likely selling the property to another higher bidder. If you don’t move fast enough, you may just lose your desired property for good. Filing a lawsuit in such a situation does not necessarily mean you have failed to mediate (depends on the language in the complaint). The filing may allow you to record a Lis Pendens on the property and bring a lawsuit for Specific Performance. After that time, you can negotiate an amicable settlement, or if the Seller is still being stubborn and refuses to honor the Purchase and Sale Agreement and sell, you may pursue the lawsuit for the specific performance of the contract - to force the Seller to sell to you.

That is just one example. I have come across many of these cases. Each one has a different solution - sometimes that solution may entail litigation to demand to close escrow and to specifically perform the purchase agreement.

Partition Actions

You co-own real property… with a friend or significant other. The honeymoon period is over. They are not paying their fair/agreed upon share of the mortgage, maintenance. Or your sibling moved in and is wrecking the place. Or the commercial shopping center or apartment building you purchased with your partners is not all that it was represented to be. Your partner is collecting the rents and leaving you in the dark.

You want out - now. But your “partner” will not agree to sell or to buy you out. What do you do?

You call me for a consultation.

If the adverse party will not play ball, I can file a “Partition Action.” It is a lawsuit that forces the sale of real property.

If certain factors are present, and if you need, we can move the court to appoint a Receiver to collect the rents or perform other actions.

Sometimes, when such a lawsuit is filed, when the case is ripe for mediation —whether informal or formal— the parties voluntarily settle and agree to a sale or a buy out. But not always.

Since I own and operate a real estate brokerage, I know how to value property and have access to industry tools at my disposal that may reduce my clients’ costs.