Legal Blog

Do I Need to Go to Court to Win Partition of Co-owned Property?

Because real estate is often so expensive, and because real estate parcels are regularly gifted to or inherited by multiple parties, it is not uncommon for real estate to be jointly owned by two or more parties as tenants in common. And, given the shifting financial and geographical goals and needs of different individuals, it is also not uncommon for there to come a time when at least one of those parties wants to change this arrangement of co-owning the entirety of the property.

It could be that one party wants one portion of the property solely to himself or herself without the difficulties of co-ownership, but in most cases the situation is that one party either needs or the funds corresponding with his or her ownership interest in the property, or simply does not want the hassle or obligation of co-ownership of a property that may be thousands of miles away from his or her current residence. In such cases, partition is the appropriate legal remedy for these parties. And while working with an experienced real estate attorney to negotiate and execute the partition is highly recommended, it may not be necessary to go to court to win the results associated with a partition lawsuit.

What a Partition Lawsuit Entails

In a partition lawsuit, one party must go to court and request that a judge issue an interlocutory judgment which officially orders that partition should occur. Most co-owners have a right to partition (unless the right has been waived), and thus the interlocutory judgment in and of itself is not difficult to obtain.

What comes next, however, is more complicated and costly. If the person seeking partition wants to divide the land, the court must appoint a referee to oversee the process to ensure that it is done fairly in light of the co-owners’ proportionate interests. This can involve lengthy battles over the relative values of portions of the property (with the referee charging expensive hourly fees in addition to the attorney fees associated with litigation).

If the person seeking partition, however, is seeking a sale of the property and division of the proceeds, this can be relatively easier, as it is easier to fairly divide dollars and cents than property, but will still involve the process of a court-overseen auction process.

Reaching the Goals of Partition Without a Lawsuit

If both parties are reasonable and willing to work with each other, the results of a partition lawsuit can be reached without litigation. Much in the same way family law attorneys might reach a settlement divorce agreement outside of court in light of state divorce law, a real estate attorney can negotiate a partition agreement outside of court based on the principles and rights the parties have under state law.

When both parties are fully made aware of the likely outcomes of a partition lawsuit – and keeping in mind that in most cases partition is a right that is not in question – they can proceed towards a mutually beneficial outcome without incurring the added costs associated with a complex partition lawsuit.

Contact the Real Estate Litigation Attorneys at Wagenseller Law Firm

At Wagenseller Law Firm in downtown Los Angeles, we provide full legal services to individuals and businesses in business and real estate litigation matters. Contact Wagenseller Law Firm today to schedule a consultation to discuss your real estate matter.

What are My Remedies When a Real Estate Deal Falls Through?

Few types of investments can carry more financial risks, consequences, and potential pitfalls than a large-scale (or even small-scale for that matter) real estate deal. Whether you are acting as an investor, outright purchaser, or seller in a real estate deal, you have the potential for high returns, but you also face much more room for complex and unintended issues than when investing in, say, stock or debt-based investments in a Fortune 500 company. Oftentimes, litigation – or at least the threat of litigation – is necessary for achieving your intended outcome when a real estate deal goes south. Contact an experienced real estate attorney to discuss your options and likelihoods of success for your particular challenge, but below are the basic types of remedies you can pursue when another party breaches his duties or obligations on a real estate deal.  

Specific Performance

Specific performance is an equitable remedy by which a court requires that another party to a contract follows through on his or her obligations pursuant to the contract. Specific performance is not available as a remedy on most contracts, but the law views real estate purchases differently. Because every piece of real estate is unique, a court may honor the rights of either the intended buyer or the seller under a real estate contract by requiring that the party attempting to skip out on the deal follow through with its obligations under the real estate transaction.  

Money Damages

As an alternative remedy to specific performance, a party who has breached on his or her obligations under a real estate contract – which could include anything from failing to go through with the transaction to making representations about the property or financing which turn out to be false – may be required to pay money damages to the non-breaching party which provide that party with the financial benefit they would have received had the deal gone through as intended and represented in the contract.

Partition

Another option that a court has in resolving a real estate transaction or transfer is partition, which means to divide the property between the parties in conflict. This is more likely to come into play when the property consists of multiple buildings and/or units, or contains a large plot of land. The court can also order partition with regard to proceeds arising from use of the land such as rent or resource extraction. Typically, this remedy is applicable when there is a dispute among multiple owners/claimants of a previously undivided piece of property.

Resulting Trust

A resulting trust is a remedy that a court can award when an investor has devoted funds towards the purchase of a property but has not been placed on the title of the property. A resulting trust means that the court will consider the owner who is on the title to be holding the property wholly or partially in benefit of the investor who is not on the title.

Contact the Real Estate Litigation Attorneys at Wagenseller Law Firm

At Wagenseller Law Firm in downtown Los Angeles, we provide full legal services to individuals and businesses in business and real estate litigation matters. Contact Wagenseller Law Firm today to schedule a consultation to discuss your real estate matter.

Responding to a Specific Performance Demand in a CA Real Estate Deal

Whether you are a purchaser or seller in a residential or commercial property deal, there may come a point in time before closing when you decide you no longer want to go through with the deal. There could be any number of reasons for this: concern over rising or falling property values; another real estate option that popped up; a lost revenue source; or even a personal attachment to the property itself. You always have the option of asking the other party to consider renegotiating the sale agreement, and, if both of you agree to do so then you are free to do that. But, under California law, the other party does have the right to demand specific performance, and you are advised to work with a real estate litigation attorney in response to such a demand.

Specific Performance in California Real Estate

For the uninitiated, specific performance is a judicial remedy by which a court orders that one party in a contract go through with its obligations under the contract, i.e. sell the property to the party requesting specific performance or, in other cases, follow through with the purchase of the property.

In most contractual matters, courts are reluctant to order specific performance on the principle that parties should be free to do what they please without the government forcing them to do something. In such cases, money damages are usually paid by the breaching party to the non-breaching party to account for the losses the non-breaching party suffers.

The courts view real estate deals differently, as every piece of real estate is, by definition, unique. Thus, when a party contracts to buy a certain piece of real estate, money damages would be insufficient to cover the breach of not selling that piece of real estate. Courts will enforce specific performance against both breaching buyers and sellers in real estate deals.

Work With an Attorney to Respond to a Specific Performance Demand

If your only grounds for not wanting to go through with either purchasing or selling the property are that you have changed your mind based on some factor that has nothing to do with the other party’s actions thus far, you may not have a great case for opposing a specific performance demand.

That said, if there are obligations pursuant to the land sale contract that the other party has failed to follow through with – or if there are significant inaccuracies or questions about the validity of certain representations made to you – then you may be able to defeat a demand for specific performance.

A real estate litigation attorney can examine your circumstances to determine whether such grounds may exist. An attorney can also negotiate on your behalf with the other party in pursuit of alternative resolutions to the matter short of your going through with the transaction.

Contact the Real Estate Attorneys at Wagenseller Law Firm

At Wagenseller Law Firm in downtown Los Angeles, we provide full legal services to individuals and businesses in business and real estate litigation matters. Contact the Wagenseller Law Firm today to schedule a consultation to discuss your real estate matter.

A CA Commercial Tenant’s Options When Receiving a Pay or Quit Notice

In California, a commercial landlord has the ability to demand that rent be paid on the first day of the month, or the first day of any other periodic term as set forth in the lease. Although leases may allow for a grace period, such as allowing tenants to pay within three or five days of the first day of the month, there is no state law that demands such a grace period be included in a lease agreement. As soon as a commercial tenant misses making a rent payment – which can be the end of the first day of the month if there is no grace period – the landlord can begin the process of eviction of that tenant. The first step in an eviction (or unlawful detainer) process is to present the commercial tenant with what is commonly called a “pay or quit notice.” The commercial tenant has several options at that point.

What a Pay or Quit Notice Is

Although California state law does not use the phrase “pay or quit notice,” the notice is required under the law to begin the process of an eviction. A landlord can choose to give a tenant a pay or quit notice as soon as possible after the rent goes unpaid (again, the 2nd day of the month where there is no grace period).

The pay or quit notice is a demand from the tenant to pay the rent due within three days or else face eviction proceedings. The notice should include the following information:

  • the amount of rent which is due
  • the name, telephone number, and address of the person to whom the rent payment shall be made, and
  • if payment may be made personally, the usual days and hours that person will be available to receive the payment

The notice can be served on the commercial tenant 1) personally, 2) by leaving it with a person of suitable age and discretion at the commercial property and then also mailing a copy to the tenant, or 3) if no suitable person can be found, then by affixing a copy in a conspicuous place on the property, and also sending a copy through the mail addressed to the tenant.

What a Commercial Tenant Can Do Upon Receiving the Notice

If you as a commercial tenant receive a pay or quit notice, there is little time to delay in responding.

Your first option is to simply pay the amount due to the landlord per the terms of the notice. If you pay the rent due within three days of receiving the notice, then your landlord will not be able to pursue an unlawful detainer (eviction) proceeding against you.

If you either cannot pay rent or are unwilling to pay rent, you also have the option of avoiding an eviction lawsuit by vacating the property within the three days (the “quit” option), and returning your keys to the landlord. The landlord will still have the option of pursuing the rent owed on the property, as well as future rent payments still covered by the lease, but at least an eviction proceeding on your record can be avoided.

Finally, you can stay on the property and not pay the rent, but the landlord will be able to proceed with an eviction action as soon as the three-day period is up. If the eviction action is successful, the landlord can retake the property and still have the right to pursue you for any rent payments due under the lease.

If you believe the commercial landlord has not fulfilled its obligations under the lease, and that is the reason you are withholding rent, you run a high risk of an eviction by not paying the rent due. Once an eviction proceeding starts, you will not have the ability to avoid the eviction proceeding by paying the rent due. There are other legal strategies to pursue in attempting to compel a landlord to comply with the terms of the lease, and you are advised to work with a real estate litigation attorney to pursue those options.

Contact the Real Estate Attorneys at Wagenseller Law Firm

At Wagenseller Law Firm in downtown Los Angeles, we provide full legal services to individuals and businesses in business and real estate litigation matters. Contact the Wagenseller Law Firm today to schedule a consultation to discuss your real estate matter.

Handle California Lease Exclusivity Clauses With Care

A common clause requested in a California commercial lease is a lease exclusivity provision, or “exclusive use provision.” In essence, an exclusive use provision means that the landlord agrees to not rent property in a multi-unit commercial property (such as a mall or shopping center) to another business that offers the same goods or services. For example, a coffee shop in a busy office park may want an exclusive use provision saying the landlord will not rent to a competing coffee shop, thereby splitting the customer market for the first coffee shop.

This, of course, limits the landlord’s ability to find future tenants and sources of revenue, but many commercial tenants – from Mom and Pop operations to national chains – will demand such provisions before signing a commercial lease. Such a demand can and should certainly be taken into account in negotiating rent, as the tenant is getting more value with such a clause That said, simply refusing to include exclusive use provisions in all leases may not be an option for landlords. But such clauses should be carefully and thoughtfully drafted to avoid costly problems down the road.

The Danger of a Poorly Written Exclusive Use Provision

Many of the problems that we see with exclusive use provisions arise when they are vague or unclear. For example, if a tenant is a high-end jewelry dealer specializing in diamond engagement rings, and asks for a provision prohibiting renting to “any direct competitors,” a disagreement may arise over what is included in “direct competitors.” Does another jewelry store that specializes in hand-made bracelets and necklaces qualify? How about a store that primarily sells women’s clothing but has a rack of jewelry?

In agreeing to an exclusive use provision with a tenant, work with an attorney to draft language that is not only clear in what types of other tenants it covers, but which also protects your interests to lease to the widest variety of tenants possible. You might even request the tenant list all of the businesses they are specifically concerned about (e.g. specific restaurants or clothing stores) and attempt to limit the clause to those businesses. Or, more broadly, you can work to make the exclusive use provision as specific as possible, e.g. “other restaurants primarily selling prepared vegetarian meals.”  

In all matters, your attorney can guide you in the negotiating and drafting of lease terms that protect your interests and limit liability risk down the road.

Contact the Real Estate Attorneys at Wagenseller Law Firm

At Wagenseller Law Firm in downtown Los Angeles, we provide full legal services to individuals and businesses in business and real estate litigation matters. Contact the Wagenseller Law Firm today to schedule a consultation to discuss your real estate matter.

Trial Victory!

We are pleased to announce that Laine Wagenseller and Wagenseller Law Firm have emerged victorious in a trial between disputed owners of a Los Angeles property.

The Lawsuit. Plaintiff sued his brother (our client), alleging that he was the true owner of our client’s home. Plaintiff claimed both that he had contributed the down payment at the time of purchase and that he had later entered into an oral agreement to split ownership of the property as forgiveness for a loan.

The Trial. We appeared for trial before Judge Robert Hess in the Los Angeles Superior Court for a three-day court trial. Both parties and various family members testified.

Did You Know? Evidence Code section 662 states that the owner of legal title to property (i.e., the person on the deed) is presumed to be the full owner of the full beneficial title. This presumption may be rebutted only by clear and convincing evidence.

The court found the burden of proof to be dispositive in this case. Although the court found credibility issues on both sides, the plaintiff was unable to prove his claims of ownership. Judgment was entered in our client’s favor and we were awarded costs.

We are pleased to secure this victory for our client. We handle many real estate lawsuits between family members. These lawsuits include co-owner and partnership disputes, resulting trust, breach of contract, quiet title and other claims involving real property. How can we help you with your real estate law needs?

Can I Void a Contract in California if the Other Party Fails to Perform?

The whole point of having a contract is to obtain assurance that another party is going to actually do something, as in provide a good or a service, and that, if the party fails to do so, there will be a way to either force that party to perform or to win financial damages for their failure. But, in some cases, once one party gets into the contract, they find that, for whatever reason, they no longer want to be bound by the contract and are looking for a way out of it. Such reasons can include a job being much harder than previously thought, goods or services no longer being needed, or just general unease about working with the contractual partner. But the other party was looking for the same assurance of your performance when you entered into the contract, thus you are going to need a legally valid reason to void the contract or otherwise be freed from your obligations. If the other party has not performed on its obligations under the contract, that may or may not be a way to get out of your own obligations.

Material Breach in California

To get out of contractual obligations based on the argument that the other party has not performed under the contract, a party will have to show that the other party’s failure was a material breach of the contract. What is and is not material is a flexible, fact-intensive standard that will look at whether significant aspects of the contract were performed.

At one extreme, if you hired painters to paint every wall surface in a 50-room office building, and they accidentally failed to paint the back of one office door, this will certainly not be a material breach, and you will not be released from your obligations to pay the painters under the contract (less whatever costs you incurred for actually finishing the project). On the other hand, if the painters only painted 10 of the rooms before the workers moved on to a new job and are now demanding payment via the contract, this is obviously a much stronger case that there was a material breach and there will be no breach of contract on your part for failure to pay.

In addition, to argue material breach as a way of avoiding obligations, it will also be necessary to show that your performance in the contract was dependent on the other party’s performance, per the terms of the contract. For example, if payment for the painting was conditional on the painting being completed, this will satisfy the dependency requirement. But if both parties agreed to perform under a contract, and one performance was not dependent on the other, then one party cannot void his obligations because the other failed to perform (but that party can still sue the other party for breach of contract in such a case). 

Other Ways to Void Obligations Under a Contract

The other party committing a material breach of a contract is not the only way to get out of the obligations of a contract, however. Other ways include showing that there was:

  • Fraud used to induce a contract
  • Mutual mistake by both parties concerning a material aspect of the contract
  • Duress or undue influence used to induce a contract
  • Lack of consideration (meaning one party was merely making a promise and receiving nothing in return)
  • Unconscionability of a contract (extreme unfairness)

Anytime you are considering not performing under a contract, you are risking a breach of a contract action if you do not pursue your rights correctly, so you are strongly advised to work with a breach of contract attorney in pursuing your options.

Contact the Commercial Contract Attorneys at Wagenseller Law Firm

At Wagenseller Law Firm in downtown Los Angeles, we provide full legal services to individuals and businesses in business and real estate litigation matters. Contact Wagenseller Law Firm today to schedule a consultation to discuss your commercial contract matter.

What is the Statute of Limitations in California Quiet Title Lawsuits?

One of the most contentious and financially consequential types of real estate litigation actions is a quiet title action, which are often far from being quiet affairs. A quiet title action is one in which one party who has an interest in a piece of real estate brings a lawsuit against another party claiming to have an interest in that property, in which the requesting party (the plaintiff) is asking the court to rule that the other party (the defendant) does not actually have the claimed interest. If successful, the court will rule that the defendant does not have the property interest, and will officially grant the plaintiff a ruling which will allow that plaintiff to ignore the defendant’s claimed interest, whether they stay on the property or are attempting to sell it. The parties in a quiet title action can be parties who both claim to own and thus have the right to possess the property, or one party might merely have a limited interest, such as a lease on the property, an easement, or a lien via a mortgage. As with any claim, California courts will require that a party bring a quiet title action with the applicable statute of limitations.

The CA Statute of Limitations Depends on the Underlying Claim

California actually does not have a specific statute of limitations for quiet title actions but courts have provided guidance on when such claims must be brought. Instead, the courts have said that they will look at the underlying legal cause of action that the quiet title claim is based on in determining what time limit will apply.

In the 2015 case of Salazar v. Thomas, the California Court of Appeals ruled that the likely statute of limitations that would apply to various underlying causes of actions were:

  • 5 years when the claim was based on adverse possession
  • 4 years when the claim is based on cancellation of an instrument
  • 3 years when the claim is based on fraud or mistake

Thus, potential plaintiffs in a quiet title action will need to base the timing of the filing of a suit on the legal theory they are pursuing, but another critical question is determining exactly when the clock starts ticking on the applicable statute of limitations.

Possessors Generally Are Not Barred by the Statute of Limitations

An interesting aspect of quiet title actions in California is that any party claiming an interest in property can file a lawsuit, and thus act as a plaintiff, regardless of the type of interest. Thus, a plaintiff might be a mortgage holder seeking a judicial declaration of the mortgage itself, a party seeking judicial recognition of an easement, or the putative owner/possessor of the property itself.

The courts have ruled that, in general, those parties that actually possess the property are not barred by any statute of limitations. Thus, if a party bought a piece of property from a seller 20 years ago, and the initial seller is now claiming they still own the property, the party can bring a quiet title action against the seller despite decades having gone past.

This rule, however, only applies when the possessor has been in “undisturbed possession” of the property, essentially meaning that the defendant has not made a claim on the property at an earlier point. It is not entirely clear in all situations when this does and does not apply, but the courts have said that having a tenant on the property will not affect the possessor’s right to later bring a quiet title suit based on a statute of limitations argument. The courts have also said that a notice of default brought by a mortgage holder will not qualify as disturbing the possession, because that is not the same as the mortgage holder claiming possession.

Other situations may be less clear under the current case law. In all cases, speak with an experienced California real estate attorney in either bringing or responding to quiet title action.

Contact the Quiet Title Attorneys at Wagenseller Law Firm

At Wagenseller Law Firm in downtown Los Angeles, we provide full legal services to individuals and businesses in business and real estate litigation matters. Contact the Wagenseller Law Firm today to schedule a consultation to discuss your commercial contract matter.

Building Men in Uganda

*Generosity.com is free to non-profits.  Please delete the ‘suggested gift’ when donating so that all money goes to the school*

Will you help me Build Men?

“This is my beloved son with whom I am well pleased,” says Matthew 3:17.  But I was standing in the middle of a field doing farm work with 15 teenage orphan boys outside a small village in rural Uganda.  Their parents had died.  Oftentimes other extended family members who were taking care of them had died.  They had dropped out of school. I wondered to myself –

Who would tell them that they are loved?  

Who would tell them that someone is well pleased with them?  

Who would let them know that God loves them?

Eight years ago I traveled to Uganda to work with Bringing Hope to the Family, an orphanage in the small village of Kaihura. I didn’t go with any particular purpose in mind but the image of those teenage orphans stuck with me after I returned home.

“For we must remember that above all else, boyhood is the time of affirmation, the time when a boy comes to learn and learn deeply that he is the beloved son,” explains Christian author John Eldredge.  Eldredge explains that “masculinity is bestowed.  A boy learns who he is and what he’s got from a man or the company of men.  He cannot learn it any other place.  He cannot learn it from other boys and he cannot learn it from the world of women.”

“Without this bedrock of affirmation, this core of assurance, a man will move unsteadily through the rest of his life, trying to prove his worth and earn belovedness through performance or achievement, through sex, or in a thousand other ways.  Quite often he doesn’t know this is his search.  He simply finds himself uncertain in some core place inside, by fears and the opinions of others, yearning for someone to notice him.”

I decided after my first visit to focus on working with these boys with the idea of Building Men.  I have been back to the farm at the orphanage every year for the last eight years. 

And I can’t wait for next year.

Among its many programs Bringing Hope to the Family runs the New Hope Vocational School on a farm outside a small village.  Originally there were 15 boys who learned carpentry and agriculture and lived in one small shack.  Through the support of many of you the school has grown by leaps and bounds over the last eight years.  Eight years ago I sat under a tree talking with fifteen teenage orphan boys. 

This year New Hope has 63 girls and 20 boys learning brick laying, agriculture, carpentry, craft making, sewing, hair dressing and more. 

Every year our two-week program has grown as well.  Working with Ugandan leaders we have brought in speakers who talk to the kids about success, business skills, time management, responsibility, faith and the story of their own lives.  We bring in teachers who share their skills—shoe repair, cooking, craftsmaking and farming among others.  And every year alumni come back to join our two-week program and learn new skills. 

This year we reached about 100 young adults.

We have taken field trips to visit technical schools and large commercial farms.  We have gone on safari where we can hang out together and talk more about what makes a great man.  This summer we met Uganda’s farmer of the year and toured his coffee and banana plantation.  He told us the story of how his father had been murdered in front of him when he was only 12 but how he had worked hard to amass over 4,000 acres and build a successful business empire.  He was an inspiration.

The boys and I talk about becoming great men.  We share our big dreams.  We address fear and the feeling of not being good enough.  My challenge is to see how much trust and openness I can build in two short weeks. 

But for all of the great trips we take and the new skills we learn, one idea stays at the forefront—to let these boys know that they are loved.  To let them know that they are the beloved son.  I can feel the emotion course through them when I tell them how proud I am of them.  Many boys from years past come back to see me and they want to show me what they have accomplished.  They are looking for someone to notice.  I remember the first boy I greeted when I arrived last year.  I walked up, called him by his name and gave him a hug.  He stopped and said, “You remember my name?”

I am always motivated by Joshua 1:9:  “Have I not commanded you?  Be strong and courageous.  Do not be afraid; do not be discouraged, for the Lord your God will be with you wherever you go.” 

I hope that I inspire the boys to be great men.  I know that they inspire me.  I also know that they fill my life with purpose and fill my heart with love.  When I am working with the boys I feel like I am living for a greater cause and that I am that much closer to God.

All these kids need to be fed.  And they need to be housed.  And they need teachers and school supplies and tools.  I am partnering with Legacy World Missions to ensure that all donations go directly to the orphans at Bringing Hope to the Family Orphanage and the New Hope Vocational School. Please help me support the kids at the orphanage today by donating on generosity.com!

Can I Avoid a California Breach of Contract Suit if I Was Mistaken About the Facts?

At some point in our lives, all of us enter into some kind of agreement – whether it be for a purchase or sale of a product or service – that we later want to get out of once we learn new, additional, or different facts about the facts underlying the agreement. It could be a summer rental that you now realize is next to a sewage facility, or a contract to provide services to a company you now realize is the arch rival of your biggest client. The danger, of course, in not performing on your contractual obligations is that you could face a breach of contract lawsuit.

But the question then becomes whether the fact that you misunderstood the facts when you made the contract – what we call a “mistake of fact” as a legal term of art in contract law – allows you to rescind the contract and avoid a successful breach of contract suit. Speak to a California breach of contract attorney for in-depth guidance on the particular contract you are facing, but here are a few questions to keep in mind.

Was the Mistake Unilateral or Mutual?

If you and the other party together made a mutual mistake about an aspect or object of the agreement, then it is always possible that you can work with the other party to renegotiate the contract. Of course, if the mistake at issue is something that benefits the other party to your detriment, the other party may not want to renegotiate.

Assuming that both parties are mistaken as to material fact relating to the contract, then courts may allow one party to rescind the contract, which means the court will treat the contract as not existing and thus there is no obligation. The key determination here is whether the fact is indeed “material” – in other words, a significant aspect of the contract.

But if the mistake was a unilateral mistake on your part, meaning only you made the mistake in entering into the contract, there are a few more questions to assess.

Did the Other Party Know of and Take Advantage of the Mistake?

Many contracts involve some inherent risk of mistake, as it would be inefficient for all parties to know all available facts related to the execution of the contract before they entered into it. Thus, California law limits the types of unilateral mistakes that will justify rescission of that contract to a relatively limited type of scenarios.

Generally, before a judge or jury will rescind a contract based on unilateral mistake, it will want to see the following types of factors sufficiently proved by a preponderance of the evidence:

  • That the person seeking rescission did not act excessively carelessly in causing the mistake (one way of thinking about this was whether it would have been easy and expected for the plaintiff to avoid making the mistake);
  • That the other party actually knew that the mistaken party was operating under the mistaken assumption (e.g. was the mistaken assumption communicated to the other party?);
  • That the other party took advantage of the mistaken party’s mistake; and
  • The party seeking rescission would not have entered into the contract had they known the truth.

Again, speak with an experienced breach of contract attorney about your particular circumstances.

Contact the Commercial Contract Attorneys at Wagenseller Law Firm

At Wagenseller Law Firm in downtown Los Angeles, we provide full legal services to individuals and businesses in business and real estate litigation matters. Contact Wagenseller Law Firm today to schedule a consultation to discuss your commercial contract matter.