Legal Question in Real Estate Law in California

My brother and I own a house in California as tenants in common. We each pay 1/2 of all expenses. He lives in the house and I park my rv in the yard and stay in it when I am there.

We have about $525 in the house as we purchased it at the height of the market. Today the realtor has said the house is worth someplace between $350 and $400. My brother has decided that he wants to sell the house--but not at market price. He wants me to enter into a "dutch auction" with him. I do not wish to sell the house at this time. I would rather keep it and wait to see if the market turns around.

I have suggested to him that we rent the house for a couple years but he is not interested in that. I have suggested that he continue to live in the house but he is also not interested in that. I have suggested that I move into the house and "baby sit" it until the market recovers, but he is not interested in that. The only thing he wants to do is enter into a "dutch auction" knowing full well that I do not wish to take a loss on my investment--so he will bid it up to beyond fair market value. To avoid taking a loss on the house I would end up paying someplace between $440 and $525 as he has said he feels he can get $440 out of the house if he buys it. The problem is, I do not want to sell the home. I would like to live in it but I can not live with him as he has said that he does not want to be disturbed before 9am or after 4pm and I am not to run the furnace on my 5th wheel as that also disturbs him. I have tried to abide by his wishes, but it is clear there is not way I could possibly live in the house with him.

My question is--can he go to court and force me into a dutch auction? Since he is the one wanting to sell and I am not, I would think that the court would tell him to sell at fair market value or forget it.

Please advise.

Thank you


Asked on 4/25/10, 1:28 pm

1 Answer from Attorneys
Anthony Roach Law Office of Anthony A. Roach

What he can do is file what is known as a partition action. Assuming that the property is not divisible in kind, he can ask for partition by sale. Partition is by physical division unless the parties agree on a sale or the court determines that partition by sale would be "more equitable." (Code of Civ. Proc., sec. 872.810, 872.820.)

In that situation, the court orders the property sold. The property is sold at Fair Market Value, and not at Dutch Auction. In my experience, what normally happens is one tenant in common ends up buying out the tenant in common who has filed the partition action. (By the way, as a tenant in common, you have equal rights to access the property and do not have to stay out of the house and live in an RV.)

The court appoints a referee to divide or sell the property. (Code of Civ. Proc., sec. 873.010.) If the parties do not agree on the terms of the auction, the court determines them. Bidding is done in writing.

If the parties buy one another out, it is done at appraised value. By the way, in California, a realtor is not qualified to estimate or determine the appraised value of real property. Testimony from realtors is introduced often by inexperienced attorneys, but frowned on at the appellate level.

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Answered on 4/30/10, 1:41 pm


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