Legal Question in Real Estate Law in California
I have a complicated situation with regards to a tenancy in common. My father and I became joint tenants after my mother died, but did not want my sister to be added at the time. After 7 years, she moved back into the house, and I was living 500 miles away going to school. Several things happened and the relationship between my sister and I dissolved due to the use of the home equity line in my father's name (we both borrowed against it, I asked my father and she didn't).
Basically, she tried several tactics to get me out of the house. Filed a restraining order, forced him to give her power of attorney, and sign his half of the house over to her. Now, I understand this broke the joint tenancy and now we are joint tenants. However, I own a 50% undivided interest, and my father retains a life estate on his half.
I want my sister to buy me out, because I don't want anything to do with them anymore. My father is retired and on disability and she is looking for work. I started to ask her to buy me out in 2006 (when the problems all started) and she has continuously given me the runaround. Another problem is my father would never accept money from me to contribute to the taxes, and while I was in school and I wasn't able to contribute to the equity payments. However, after a sale, I am willing to subtract what I owe from the proceeds of the buy out.
I don't think I can file a partition action, and my sister is quite content to just keep this going when I want OUT!!
Any advice would be greatly appreciated. I feel like this is a no win situation, but at the same time I don't want to force a sale and leave my father stranded.
Thank you,
MRL
2 Answers from Attorneys
A partition sale will not effect your father's life estate. It will be of the remainder interest only. This is the only way you can force the sale of your interest - partition sale of the reminder interest. Depending on your fathers health and age, the remainder interest may not have much value.
Call me for further assistance.
www.michielawfirm.com
I respectfully differ with Mr. Michie that a partition sale will not affect your father's life estate. There was, perhaps, a time when a life tenant could not be a party either as plaintiff or defendant in a partition action because a life tenant is, as such, neither a joint tenant nor a tenant in common, the modern partition law (enacted about 1975) is much more inclusive. The statutes make it absolutely clear that a life tenancy is subject to partition and that a life tenant is entitled to be a plaintiff (and can be obliged to defend) in a partition suit.
See for example Code of Civil Procedure sections 872.210(a)(2), 873.830, 873.840, and 874.210(a)
It is, however, also true that the court has greater latitude in deciding whether to grant partition and in determining how the life tenant's share will be determined and paid to him if it grants partition.
In your second paragraph, you speak of breaking the joint tenancy "and now we are joint tenants." You presumably mean to say "....and now we are tenants in common." That's indeed what you are.
You didn't give us a hint as to the financing status of the property. Sounds like there are or were loans agains it, but is it under water or do the owners have significant equity? This may affect the advisability of a partition.
Keep in mind that the mere filing of a partition suit has a powerful effect of persuading reluctant or indecisive co-owners to come to the bargaining table. Probably well over half of all partitions that are filed are settled out of court before a final decree. Settlements can include simple agreement to the status quo with some minor modification to who pays what or the possession and use of the property, all the way to a private sale of the property and use of an arbitrator to allocate the proceeds.
In your situation, there is probably some compromise that can be worked out that keeps your father in the property and gets you out of co-ownership, but maybe preserves your potential inheritance. Maybe some solution that avoids selling into a weak market, saves taxes, and so on. You should consider a family trust, reverse mortgages, and maybe other options which could be part of a comprehensive settlement.
Please feel free to contact me directly by email or phone for further no-obligation consultation.
Related Questions & Answers
Looking for something else?
10,200 active attorneys ready to answer your legal questions today.
Featured Attorneys
Earn additional revenue and grow your business.
