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.