Legal Question in Real Estate Law in California

Re: Brothers and homeownership, selling is it equal

As tenants in common both you and your brother are owners of the house. Because you both own the house, his consent is required to sell the house, and he is entitled to one-half of the proceeds of the sale. However, if you have made all of the monthly payments, you are entitled to receive one-half of the total of the monthly payments made by you, together with one-half of the increase in value of the house.

You can advise the escrow holder of the amount of money each of you is supposed to receive at the end of the transaction and, if your brother will agree to sign the necessary documents to transfer the house, the escrow company will simply pay you what you are entitled to.

However, your brother may refuse to sign any documents which will, in turn, prevent you from selling the house. If this happens, you will need to sue him for partition of the property. In a partition action, you would ask the court to order the house sold and the proceeds distributed to you both in proportion to your respective interests. These types of lawsuits can last for several years before they are finally resolved, during which time you will be unable to sell the house.

You should probably arrange to meet with an attorney in your area so that you can let the attorney look at all of the documents you have to support you position. The attorney can then advise you of your best course of action.

Re: Brothers and homeownership, selling is it equal

As joint tenants, you and your brother each own, legally, an undivided half interest in the house.

You can theoretically sell your half interest, which would terminate the joint tenancy. The buyer and your brother would thereafter be tenants in common, each with right of possession.

As a practical matter, no one would pay a decent price for a half interest in a house that left him, in effect, a stranger's housemate. Therefore, it is a practical necessity to work out some kind of a settlement with your brother.

Although a negotiated dettlement is far preferable, if that fails to come about, you can resort to a lawsuit for 'partition' of the property. Traditionally, this suit asked a judge to order a property divided between the co-owners into two separate, individually-owned pieces. Since this is impractical in most modern situations due to urbanization and the laws regulating subdivision, courts usually just order the property sold and the net proceeds divided fairly (not necessarily 50-50).

Partition suits take time and legal expense, and often the sale price received in a court-ordered sale is less than might be achieved under a more deliberate marketing effort. Suits between close family memebrs are also to be avoided whenever possible. On the other hand, the mere filing of a partition suit may result in a reluctant party coming to the bargaining table and an out-of-court settlement before trial.

You didn't say who is living in the house. If you are living there, or collecting rent, and your brother is not, this may, in part or entirely, offset your claim for reimbursement of mortgage payments.