Legal Question in Real Estate Law in California

If you are both on title, you have what is called a concurrent estate. You are not clear, but it is either a joint tenancy, or a tenancy in common.

Each tenant has the right to possess all portions of the property. No co-tenant has the right to exclusive possesion of any part. A co-tenant out of possession cannot bring a possessory action unless there has been an "ouster" by the tenant in posession.

If you send me an e-mail me as to how you actually hold title, I can give you the citation to the legal authority that you are looking for.

It doesn't matter how title is held to answer your question. It is, however, one of those questions that is hard to answer because the rule is so old and well established that no one has legislated or litigated the issue in decades or maybe even centuries. The best authority in California on the subject is Civil Code section 843 that governs "Ouster." If one joint owner is precluding another from occupying the property, the owner out of posession can bring an action for ouster to obtain joint posession and damages. The section also provides that it is not intended to preclude an agreement between joint owners for payment of rent in lieu of posession. That is generally held to mean that there is no entitlement to rent in the absence of agreement. If the parties cannot agree then the only remedy is take joint posession over the objection of the other owner in posession, or to file an Ouster proceeding if self-help occupancy would risk a breach of the peace.