The Real News

RELAW, APC
July, 2016
Ownership, Possession and the Unlawful Detainer Process


The difference between ownership and possession came into sharp focus for a woman in Nashville last month when she bought her first home.  After taking title to the property she was shocked to find that the seller was still in the property refusing to leave.

The fact is that most people think of possession and ownership as being one and the same concepts and use them interchangeably. Ownership and possession connote the same property classification in our minds. Legally, however, they are two different things.
When an individual has legal rights over a property, he is said to own it. Ownership is a right that grants a thing or an object to a person in such a manner that the thing is said to belong to that person. If a person owns something in the eyes of the law, the thing belongs to him to the exclusion of others.

The physical control over a thing provides one a possession of that thing. For example, the house that a person lives in with his family is said to be under his possession. Possession does not automatically imply ownership, as many people have temporary possession of things. This is true for most situations in our lives, except when we are talking about objects and valuables that we have actually personally purchased.

For the poor new homeowner in Nashville, the stark reality that she owns this home but does not possess it has come into focus.  "It's been a nightmare," the new homeowner told the press. "The seller has essentially pirated my house."

The seller disagrees and told that press that he believes he has "every right to still be there."
As a result, the new homeowner has had to initiate a legal action to evict the seller.  The action, known in California as an unlawful detainer, refers to a lawsuit to remove an occupant of a dwelling, apartment, building, or unit thereof who "unlawfully holds and keeps the possession of any real property ... or continues in possession" upon notice to vacate by property owner, expiration or termination of a lease or agreement-or with no agreement at all, and no longer retains the legal right to be in possession of that property (CCP ยง 1160-1161).

If the new owner wins her case, the seller will be ordered by the court to move out.  If the seller fails to do so after that the sheriff will physically remove him from the property.

Case of the Month

Stewart Enterprises, Inc., v. City of Oakland et al.
Stewart Enterprises, Inc and SE Combined Services of California, Inc. set out to build a crematorium in East Oakland following acquisition of the required building permit. The crematorium property rested in a commercial zone and qualified for the permit obtained.  However, following an oppositional public outcry based on potential health risks and impacts from emitting pollutants as well as East Oakland's existing high rates of asthma, the issue of having a crematorium became a significant topic for review. The City backpedaled, heard its constituent's arguments, and further reviewed public policy and laws; then rescinded its then current ordinance, in which Stewart's building permit was issued, to resolve public conflict and concern.

The Oakland City Council passed an emergency ordinance requiring a conditional use permit (CUP) to operate a new crematorium; thereby affecting Stewart's building plans for the crematoria.  Stewart objected to the conditions placed on the permit that it had previously legally attained. The City argued that it was necessary to enforce a CUP forged from the emergency ordinance prohibiting the new crematorium, and that the CUP transcended any right the previous permit-vesting ordinance may have indicated. Stewart initially appealed the case to the Oakland Planning Commission where the Commission denied the appeal. Unsatisfied with that result, Stewart took its case to civil court.

At the time Stewart acquired the building permit, the existing building permit law OMC section 17.102.040(A) deemed any subsisting permit "'issued beforehand, ... neither the original adoption of the zoning regulations nor the adoption of any subsequent rezoning or other amendment thereto shall prohibit the construction, other development or change, or use authorized by said permit.'" The two main questions for the court were:
  1.     Whether Stewart had a vested right in the building permit under the permit-vesting ordinance; and
  2.        If so, whether the emergency ordinance impaired that right.
The trial court ruled that Stewart indeed had a vested right in the building permit based on the preexisting local ordinance, and the emergency ordinance infringed on its right and was not sufficiently necessary to the public welfare to justify an impairment of that right. The trial court further held that by imposing conditions on the building permit, the property owner is prohibited from executing the building process until the conditions are satisfied; this is unlikely to occur considering he will need the City's discretionary approval.

The City appealed the decision to the appellate court.  The appellate court upheld the ruling of the trial court, finding that that the original ordinance provided Stewart a "vested right to have [its] building permit application reviewed and considered in light of the regulations existing on the date of the application" (p. 8). Under the vested rights doctrine, a vested right is obtained when the party 'has performed substantial work and incurred substantial liabilities in good faith reliance upon a permit issued by the government ...;" that of which Stewart had already invested nearly two million dollars for the project. The court further noted that the City is misdirected in its position to impose a CUP requirement by invalidating preexisting legislation, and the determination of vested rights is derived from the timing of the permits rather than the effects of the enactments at the time. The appellate court also rejected the City's reasoning behind the emergency ordinance because it prohibited the construction of the crematorium rather than placing a halt on building upon further review.

Pool Cleaning Solutions Destroy Home in Indiana

The use of chemicals to clean is commonplace in American homes and considered safe and effective most of the time.  Notwithstanding, we all know that household chemicals can be dangerous if swallowed and we take precautions to keep them away from children and pets for that reason.  So too, the mixing of certain household chemicals can cause dangerous reactions.  Mixing bleach and ammonia, for example, can cause toxic gases called chloramines which can cause coughing, shortness of breath, chest pain, wheezing, nausea, watery eyes, irrigation of the throat note and eyes, pneumonia and fluid in the lungs. Bleach and acids produced chlorine gas with similar side effects, up to and including death at high levels.

Last month an Indiana couple learned about the danger of mixing chemicals the hard way when they decided to mix two similar but different pool cleaning solutions together and ended up creating a giant explosion. The couple had a little bit of pool shock compound leftover from two different manufacturers, and not fathoming they may be made with different compounds mixed them together in their kitchen figuring they were basically the same thing, and then came the BIG BANG! The result was a chemical reaction that blew out the kitchen window, blasted the kitchen sink into the lower cabinet, and splattered chemicals all over the walls. The couple were lucky to escape with only minor injuries including chemical inhalation, minor chemical burns, and temporary hearing loss.


Upcoming Speaking Engagements


July 23, 2016 - Business Principles, Practices & Law - Escrow Training Institute

To find out more about this class and/or to register please go to Escrow Training Institute's website at:



IN LOVING MEMORY:
Carol Blain, long time escrow owner, passed away earlier this month.  Services will be held on Saturday, July 23, 2016 at 3:00 p.m. at First Love Calvary Chapel Whittier. For more information feel free to contact our office.

 

 

Jennifer Felten, Esq., Principal & Editor
(805) 265-1031
jennifer@relawapc.com 
Feel free to call  or email for a free consultation.

 
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