Frequently Asked Questions

What is the difference between a “deed” and “deed of trust” (or “trust deed”)?

A “deed” is an instrument which conveys title to real property. There are several types of deeds: grant deeds, warranty deeds, and quit claim deeds. Each is different and has different legal significance. The “grantor” in a deed is, typically, the seller (who is conveying title), and the “grantee” is, typically, the buyer, who is acquiring title. A “deed of trust” or “trust deed,” on the other hand, is a security instrument which is recorded with a county recorder’s office. It is the security for a loan, securing a note, and provides that the lender can foreclose on the real property in the event the borrower defaults on the note by, in most cases, failing to make payments pursuant to the note (i.e., the loan).

How can property owners minimize financial losses and legal problems related to repairs and maintenance?

Landlords who maintain housing in excellent condition can avoid many problems. Here’s how:

• Clearly set out responsibilities for repair and maintenance in the lease or rental agreement.
• Use a written checklist to inspect the premises and fix any problems before new tenants move in.
• Encourage tenants to immediately report plumbing, heating, weatherproofing or other defects or safety or security problems — whether in the tenant’s unit or in common areas such as hallways and parking garages.
• Keep a written log of all tenant complaints and repair requests with details as to how and when problems were fixed.
• Handle urgent repairs as soon as possible. Take care of major inconveniences, such as a plumbing or heating problem, within 24 hours. For minor problems, respond in 48 hours. Always keep tenants informed as to when and how the repairs will be made, and the reasons for any delays.
• Twice a year, give tenants a checklist on which to report potential safety hazards or maintenance problems that might have been overlooked. Use the same checklist to inspect all rental units once a year.

What happens if I sue someone and obtain a judgment against that person or entity: how do I collect on the judgment?

The one who “wins” a judgment is called the “judgment creditor;” the defendant who loses is called the “judgment debtor.” A judgment creditor has many ways to collect on a judgment. The first step is to obtain a writ of execution from the court. With the writ, the judgment creditor can then direct the sheriff to “levy” on a bank account of the judgment debtor, install a keeper in the judgment debtor’s business, and if there is enough equity in property of the judgment debtor, the judgment creditor can force the sale of the judgment debtor’s property (e.g., real property, an automobile). These are all fairly complicated and costly procedures, and you will need an attorney or collection company to assist you.

Someone owes me money; what can I do about that?

First, write the person or company who is indebted to you a letter; you can send it by “regular” mail. Give that person or entity a deadline by which to pay you or make arrangements to pay you. If this fails and if the amount owed is less than $7,500 (if it is a person who owes you the money) or $5,000 if it’s a corporation who owes you the money, you can sue in small claims court without an attorney. If the amount owed is more, you will most likely need the assistance of an attorney. If the attorney cannot effectuate a settlement before filing suit, the attorney will have to file, on your behalf, a summons and complaint and you will have to incur not only attorney’s fees but also costs including a filing fee and the cost of a process server. Litigation is expensive, time consuming, and even if you “win,” collection is not always easy. It is always a good idea to try to settle disputes before litigating, if at all possible. Please consult with Ms. Stein concerning mediation and other alternatives to dispute resolution.

I am the sole owner of a business (or own a business with another individual) and don’t know if I/we should incorporate.

There are several factors involved in deciding whether to incorporate, form a limited liability company or partnership, or whether to remain a sole proprietorship. The main considerations are tax and liability issues. You should definitely consult with your tax professional and an attorney.

I’ve been sued. Do I need an attorney to defend me?

Realistically, it is very difficult for a non-attorney defendant to represent himself or herself. First, consider whether you have any insurance coverage which might apply, such as a homeowners’ or auto policy. If you’re not sure, call your agent or insurance carrier and immediately provide them with a copy of the summons and complaint with which you’ve been served. Next, consult with an attorney to discuss all available options, including early settlement negotiations.