Monthly Archives: December 2016
Real estate attorneys often have to deal with preliminary injunctions early on in a lawsuit. Often a party will file a complaint and make an ex parte application for a temporary restraining order and preliminary injunction shortly thereafter. The court will essentially engage in a mini-trial at the beginning of the case in order to assess the need for an injunction. Because the granting of an injunction can prevent a party from managing or disposing of a property as he sees fit, an injunction can be a powerful tool for leverage in real estate litigation.
What Is A Preliminary Injunction?
A preliminary injunction is a provisional (i.e., before trial) injunction that is meant to keep the status quo prior to a trial and judgment. A preliminary injunction is intended to prevent irreparable injury from occurring prior to a final court ruling. In real estate litigation, preliminary injunctions are often brought to prevent a foreclosure, a sale or destruction of property.
There are two types of injunctions: a prohibitive injunction or a mandatory injunction. The prohibitive injunction prevents a party from doing something (i.e., selling the property). A mandatory injunction compels a party to affirmatively do something.
Preliminary injunctions are just that: preliminary. They do not represent a final ruling on the dispute by the court. Even if an injunction is granted, the case will continue as any other lawsuit. At the time of trial, it is conceivable that the court could find in favor of the party who lost the application for injunction. In Los Angeles Superior Court, for example, a lawyers application for preliminary injunction is often heard by one judge while the case itself will be heard by another judge. Moreover, after the injunction but before the trial, the parties will have time to develop their evidence and conduct discovery prior to trial. At the end of trial, an injunction may be made permanent (if applicable) or may be cancelled. Oftentimes, at the conclusion of trial, the issue that led to the application is rendered moot.
When Will A Court Grant A Preliminary Injunction?
One of the key ingredients in a claim for a preliminary injunction is a showing that the moving party has a reasonable probability of prevailing. In other words does it look like they will win the case?
This must be done through a showing based on admissible evidence and a viable legal complaint. A preliminary injunction may not be based on a complaint that does not adequately allege legal causes of action.
Another key ingredient in an application for a preliminary injunction is irreparable injury. In other words, will the preliminary injunction prevent a party from an injury or damage that cannot be addressed later in the lawsuit. The best example of this is when monetary damages are the remedy. There would be no need for a preliminary injunction in a case where a party will suffer monetary damage because the court can award those money damages later on. A party seeking an injunction must establish that money damages would not be adequate or that it would be extremely difficult to establish the amount of damages.
In addition a mandatory injunction is more difficult to win than a preliminary injunction (because the court is more hesitant to force a party to affirmatively do something as opposed to simply maintaining the status quo). Case law states that a mandatory injunction is not permitted except in extreme cases and is only rarely granted.
Because a preliminary injunction will preserve the status quo and may act as powerful leverage in real estate litigation, always consider whether an application for a preliminary injunction is appropriate.
Market analysts say the recession has officially ended. However, they also believe that effects of that economic battering will still be felt by the country for months or even years to come. That has left some people asking: is it advisable to start investing in real estate right after the recession? You will be surprised with the answer.
Actually, investing in real estate today is a splendid idea. You may not believe it, but for many reasons, this is the kind of investment that will bring you profits. Here are a few of the reasons why you should inject your money into real estate today.
You can buy more real estate properties for less today. Since the economy has just come out of a slump, property prices have yet to fully recover. They are relatively lower at the moment. That means that your savings might buy you a house today. Seriously. Today presents an opportunity for you to purchase properties for pennies on the dollar. Thats value for your money. If youre a first-time home buyer, now is the right time to realize that American Dream of home ownership. If you are an investor, this is your chance to buy a property you can hold on to for now and sell for a profit in the future.
Another reason is that you have the choices of real estate. Various kinds of affordable properties are now selling across the country. The recession has led to an increase in the number of properties repossessed by banks. These are known as REOs or real estate owned properties. REOs are decent enough to become your first home. A lot of mortgage payers are also considering letting go of their property because of the tougher times. Fixer upper homes, also known as handyman specials, are very economical. These are properties that need repair and are a prime commodity for rehabbers and wholesalers.
Reason No. 4 is there are methods of investing in real estate that thrive today. Short-term methods of investing like wholesaling and rehabbing are a hit business today. Because there are thousands of available cheap properties, wholesalers and rehabbers are taking advantage of the opportunity. Wholesaling is quickly buying and selling a property for a profit while rehabbing is repairing the property before it is sold.
Lastly, education about investing in real estate is more accessible today. Before, your only sources of real estate knowledge were mentors and books. Today, there are several websites that provide this kind of education, even for free.