Skip to main content
Stephen Gregory Hammers
Avvo
Pro

Stephen Hammers’s Answers

6 total

  • Can I get a court order to have my name removed from the title of property I lost in the divorce?

    I am trying to get my name off the title of my ex's property he got in the divorce so I can refi my property. I don't qualify with 2 mortgages on my credit. I have asked him to refi his and he says it's too expensive. Can I get a court order to fo...

    Stephen’s Answer

    There are a couple issues here. First, the loan documents may have a "due on transfer" clause, such that changes to the mortgaged title may put one or both of you in default with the lender. Review the loan docs with an attorney. Second, assuming you're not in jeopardy with the lender, two options may be available to take action: (1) a motion before the court issuing the judgment in the divorce, or (2) a new action for "quiet title," which may require adding lenders and junior liens as parties. Consult an attorney to evaluate your best course of action.

    See question 
  • Property Line Dispute, Fence, Neighbor

    The location is cupertino, CA. Around 15 years ago, a fence on the property line between my house and my neighbor was replaced. But the new fence was installed a few inches over to my side. That neighbor sold the house to a new (current ) owner...

    Stephen’s Answer

    Boundary disputes are abundantly factual, and often litigated. To the extent there is a possibility that you could lose rights in the affected property over the course of litigation or negotiation, you will want to consult with an attorney before speaking directly with the neighbor. Indeed, you may ultimately decide to negotiate with the neighbor yourself, but if so, you will want to be armed with a full understanding of your rights and options. Your neighbor could take action directly based upon the statements you make in your conversation with him/her, and those actions could affect your costs and/or outcome. For example, the neighbor could elect to pursue a quieting title action regarding the property, by a claim of adverse possession. Perhaps the facts would be more favorable to you in such an action, but the defense of that claim will certainly be high. So, what is the best way to approach the neighbor under the circumstances, to avoid compelling him/her to pursue legal action? And, are the options and facts as favorable to you as you may presently believe? A lawyer can help your sort through these questions before taking action.

    See question 
  • I have a commercial lease with a management company I am on the lease as well as a family member.I have had some personal issues

    the last few months and have been late on the rent the management company is taking no action but the family member on the lease wants to give ownership of the unit back to the company can they do this without my sent since I signed the lease as w...

    Stephen’s Answer

    I agree with the foregoing answers in that you will want to review the terms of the lease in this situation, and best if you do so with a qualified real estate attorney; however, please also consider that there appear to be multiple "agreements" at issue in this matter. The first is the agreement you have with your landlord (the lease agreement). This is likely a written document. Commercial leases typically define the rights of the parties quite extensively, including the amount and method of notice in the event of default and the rights of the parties upon default. These should be discussed with your counsel. The second agreement at issue here is that with your family member(s). This may be oral or even "implied in fact." If two or more of you signed the Lease Agreement, the odds are good that, at a minimum, you had a "tacit" agreement with one another to comply with the terms of the lease and cooperate in fulfilling Lessee's obligations under the Lease Agreement. Perhaps you formally divided such duties? For example, you may have agreed with one another about who was to pay the rent, what would happen in the event one of you wished to terminate, and who would be primarily responsible for negotiating with the landlord. An analysis of such terms, whether tacit or express, is important, as you and your family member(s) evidently have different intentions with regard to the property going forward. Again, you would be well advised to discuss all of these matters with counsel.

    See question 
  • A neighbor cut a road across our property. a sheriff has given me an incident number. I think I need a lawyer... help!

    we live in the forest, in SugarPine. Neighbor refuses to repair the damage. We granted access for him to clean up his needles, and now there is a 150' Road!! Please advise what I should do next THANKS!!

    Stephen’s Answer

    This question raises issues of trespass, prescriptive easement and others. Based upon the facts you stated here, the neighbor appears to have exceeded the rights of use you granted him; however, there could be more to this than offensive behavior. The action hints at an intention to set up prescriptive rights on your property. In order to establish a prescriptive easement in California, a claimant must take action on your property that is "open and notorious," continuous and uninterrupted for a period of at least five (5) years (occasional use could establish the prescriptive use right for the same frequency, e.g., on weekends), adverse, and subject to a "claim of right" (i.e., not consented to). The holder of a "servient estate" (you) must have actual knowledge of the prescriptive use in order for such use to be "open and notorious." While situations like these appear on their surface to constitute simply rude and offensive behavior, the statutory requirements for prescriptive easements actually warrant such behavior in order for the offender to succeed(!) Thus, while the two suggestions of Mr. Martz (consulting a lawyer and writing a letter) are good initial considerations in your strategy to address the matter, the manner in which you or your attorney communicate with this claimant is of equal importance. For example, your attorney may consider whether the demand letter should be sent via certified mail, return receipt requested, in order to satisfy legal requirements and ensure you can meet your evidentiary burden. The lawyer may consider a lawsuit for quiet title or other relief. If the matter can be resolved, the attorney might consider whether a settlement agreement should be recorded to ensure that the resolution runs with the land. The bottom line is that consulting with qualified counsel here is an especially good idea because taking the "wrong" action could end up being tantamount to taking no action at all. This is particularly true in light of the 5-year statutory deadline.

    See question 
  • My husband is a pastor one of the members left the church to start his own church

    He left upset and has been visiting and calling other members saying false things about my husband and telling them to join his church what can I do ? by the way I recorded our meeting I have proof that he is lying (we have a sign) but no one k...

    Stephen’s Answer

    The issue regarding the Church member communicating false information about your husband may amount to actionable slander, which would be addressed in the civil courts. You should consult with an attorney for an assessment as to whether the statements satisfy the elements of slander. If the communications include statements that your husband has committed a crime or other such behavior, the allegations would be addressed with a claim of "slander per se," a claim which places an even higher burden upon the defendant. If there is good reason to believe the communications will continue, consider discussing injunctive relief with your attorney. There are other important torts to consider in this situation as well, to the extent that these statements may be adversely affecting the Church's income. I have a blog coming out shortly about interference with business income.

    That being said, Mr. Hirsch's admonition about recording conversations is well taken. While a number of States are considered "one party" states, permitting recording of conversations without notice to the other party, California is not one of them. Furthermore, California's law on the matter is not the only law that regulates recording conversations. The Federal Law also regulates the area, through the Federal Communications Commission (“FCC”) under Title 47 of the Code of Federal Regulations. Any person considering recording a conversation in ANY State should become well acquainted with these rules before surreptitiously recording conversations.

    See question 
  • Can I sue someone?

    I was developing a business concept with a friend/parnter to bring services to China. My partner and I approached an American based company to help with consultation and branding. We could not afford the deposit so my friend and I sought an invest...

    Stephen’s Answer

    There are a number of issues here, and most are worth exploring further.

    Unfortunately, it appears you have a problem with your partner/friend. While you may have no written agreement with your partner, a partnership can arise orally, or by implication, under the Uniform Partnership Act. Partners owe one another heightened responsibilities, as fiduciaries, meaning generally that they must take great care not to harm one another's position within the parameters of the partnership. The fact that you were cut out of the picture that you originally created with your partner, after taking specific action in furtherance of the goals set between the two of you, suggests that you were not treated with utmost loyalty and care. You may have a cause for breach of fiduciary duty against your partner/friend.

    Now, my peers make a good point that one should contemplate damages as a critical element in deciding whether to proceed with a lawsuit. But I should add that in partnership litigation, we often find that lawsuits are necessary by partners who have been wronged, to obtain various relief PRIOR to the time the business proves profitable (although almost always AFTER a breach). These are filed, for example, to prevent/enjoin certain acts of a partner, to preserve status quo, obtain a declaration from a judge, or to obtain justified leverage in negotiations. Here, you should consider that you are losing the OPPORTUNITY to participate in and make profit from this enterprise, not just a share in the fruit of the enterprise itself. Your facts may warrant a cause for injunctive relief, which is often pursued as a provisional remedy far in advance of trial, and is useful in generating settlement discussions.

    Further facts, including an explanation of the nature of this business, will be necessary to determine whether a lawsuit is ripe. A business valuation may also be necessary and beneficial. But please note, filing a case is not the only means of asserting your position or obtaining relief, particularly if you are interested in preserving this friendship. Sometimes a letter from your attorney to the offending parties generates necessary negotiation. For example, your position as a partner can be ascertained in writing through you lawyer. This position, however defined, has perceived value. If it is no longer possible for you to participate in the partnership at the level of your original expectation, your attorney may suggest making a demand upon your partner to buy you out. This could be predicated upon the liability dicussed above.

    While it is possible that waiting to take these actions may result in more certain damages for a lawsuit later, waiting also has its risks. If the business fails, such evidence will surely undermine your ability to negotiate a buy-out. Further, the principals of "estoppel" and/or "laches," or other equitable defenses, may operate to undermine your claims if you wait too long to make them.

    Thus, lots of things to consider here, beyond the issue of filing the lawsuit. All of them should be explored with counsel.

    See question