Wrinkle in California Law Provides Shortcut to Forcing Compliance

Real Estate Law Litigation by Ashlee D. Gonzales, Esq.

Real property is one of the most important purchases in a person’s life. Given the importance and the stakes involved, disputes are not uncommon. Thankfully, California real estate law provides parties with many unique and effective resolutions for disputes concerning ownership, acquisition, and division, amongst other things. Despite the options available for resolution, unhappy parties can make execution nearly impossible for the court and prevailing party.

For example, in a partition action where judgment is entered forcing the sale of real property, a disgruntled party can refuse to sign escrow documents and the deed, holding up the sale and execution of the judgment. This can be an aggravating process for everyone involved, including the co-owner, buyer(s), brokers, and escrow. Fortunately, California has a unique tool to combat this behavior, called an “elisor”. A court typically appoints an elisor to sign documents on behalf of a recalcitrant party in order to effectuate its judgments or orders where the party refuses to execute such documents. (Blueberry Properties LLC v. Chow (2014) 230 Cal.App. 4th). The authorization to appoint an elisor can be found in California Code of Civil Procedure Section 128(a)(4), which states in relevant part that an elisor can be appointed: “to compel obedience to its judgments, orders, and process and to the orders of a judge out of court, in an action or proceeding pending therein.”

Similarly, in Blueberry Properties LLC, the defendant in the matter had entered into a purchase agreement to sell an apartment complex. Defendant then refused to complete the sale, so Plaintiff brought an action for specific performance. The case ended up settling, with Defendant agreeing to sell the complex as originally agreed to. Unsurprisingly, Defendant again refused to comply with the sale, so Plaintiff moved for a judgment arising out of the settlement agreement pursuant to California Code of Civil Procedure Section 664.6. Once the judgment was obtained, an elisor was appointed to execute the deed and accompanying documents necessary to effectuate the sale. Defendant appealed the order, but the order was upheld by the court.

Another example, and perhaps the most beneficial use of an elisor we have seen thus far, is the use of an elisor to clear title to real property. In this instance, a fraudulent Deed of Trust was recorded by an ex-husband on real property acquired by the ex-wife by way of dissolution. Typically, the conventional way to resolve a cloud on title would be to file a Quiet Title action in the court where the property is located. This could take over a year to resolve, costing the parties an exorbitant amount of fees and costs. Since there was a pending family law matter in this case establishing the parties’ ownership interests in the subject property, the ex-wife was able to get an order from the Judge authorizing an elisor to execute a Full Reconveyance, clearing the cloud on title without the necessity of a Quiet Title lawsuit.

As you can see, an elisor is a very powerful and efficient tool to negate the need for further litigation. In our experience, very few people know about the power, let alone use it. If you have questions about the elisor power or need help getting the authority to appoint an elisor, we would be happy to help. Our firm exclusively practices real estate law and deals with the issues mentioned in this article on a daily basis. 

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