Legal Question in Real Estate Law in California

Re: Asset Dissolution

First, the expression "Joint Tenants in Common" is a concatenation of two terms with very different meanings: "Joint Tenants" and "Tenants in Common." The owners are one or the other but not both.

Nevertheless, deeds use this expression. The modern tendency is to treat a "joint tenancy in common" as a "tenancy in common" and not as a "joint tenancy." Both are shared ownerships of the same property. A true joint tenancy includes a right of survivorship, so that when one owner dies, his or her interest automatically passes to the remaining joint tenant(s) irrespective of will provisions or the law of intestacy. However, each tenant in common has full testamentary power over his or her ownership interest.

So, you need to consider the wording of your deed carefully, as well as other facts tending to indicate the buyers' intention, in deciding whether you have fish of fowl here.

In either case, however, the "process to dispose of" the property is almost identical if all co-owners are cooperative and willing to sign the deed, etc. to convey and grant their interests to the buyer.

If only one party is selling, or if there is disagreement among the sellers over the terms of sale (price, how to split the price, etc.) SEE A LAWYER -- the issues can get technical real fast and the consequences of a slip-up can be severe. Incidentally, the fact of unequal interests is strong evidence of a tenancy in common rather than a joint tenancy.

The fact that one co-owner paid 80% of the down payment but has been paying 60% of the mortgage payments tends to place that owner's percentage of the entire package somewhere between 80% and 60%. I assume there is no written agreement between the owners. The relationship of the co-owners may affect the legal result, by the way. Other factors include the relative size of the down payment and the mortgage; length of time you have been paying on the mortgage; whose credit the lender primarily relied upon; whether the mortgage payment is interest only and if it includes principal as well, how much; and so on. My guess is the court would divide ownership closer to 80/20 than to 60/40.

In addition to looking at your deed, you or your lawyer or real-estate broker should look at the language of your "mortgage" (probably a note and deed of trust) to see how they are worded -- i.e. is liability expressly made 'joint and several' or is there no provision for what happens if one party doesn't pay on time? Whether or not this situation has arisen, the wording may be evidence of the parties' intent in becoming co-tenants.

If the co-owners cannot agree, the court can upon petition of one owner order a 'partition' of the property. In the case of a single-family residence, this means the property will be sold by order of the court and the proceeds divided according to the ownership interests as found by the judge (or jury).

All the foregoing answers assume no marriage is involved.