Legal Question in Real Estate Law in California

Re: No Consent

Sooy for all the typos.

What were the exact circumstances of the "gift". What did you say as to you were giving the interest to your partner, was it so that your relationship with him/her would continue. What do any of the papers you filed or prepared say. What was said orally aboutthe "transfer", did yo give them halfthe property or a certain pat o fthe huose, why did they not make any mortgage payments, ddid they pay anything else for the maintencance of the house? Get together all the bills showing what payments you have made for anything involving the house

Re: No Consent

He only purchased what your partner had. Why was partner's name added? If the evidence will show you were co owners, the purchaser bought your partners share.

Joel

Re: No Consent

You are in a very tough situation. Whenever you add someone to title to the house, there is always a question of what was intended thereby. Your partner will claim that he was intended to be a 50% owner. You may dispute that, but given that 50% represents nearly a quarter million dollars, I doubt the person is going away easily. You should plan ahead and hire a lawyer to get your ducks in a row. Before a lawsuit ensues, your lawyer can perhaps get your partner to make some admissions favorable to your position.

If you claim that the deed to your partner was illegal, or otherwise not valid, you can sue for quiet title to remove the person from title.

If you claim that the person is part owner of the home, but not entitled to a full 50% equity share, you will need to sue for partition of the property by sale (unless that the property is such that it can be divided). When dividing the equity, you can make arguments as to why you are entitled to more of it than the other person. For example, if you paid the mortgage and expenses of the home, all of that figures into the accounting.

What is questionable is that your partner sold his interest for only $30k. Was this done a long time ago? Or was this done when the property's equity was already substantial? By taking such a low sum for such a large amount of equity, this could possibly be deemed an admission as to the amount of ownership he believed he had (minimal).

Your other option is to try and settle. Of course, this will come with a price tag.

Why did you deed your partner an interest in the property? That's where the analysis should really start.

We have handled real estate matters all over California. Feel free to call or email with any questions.

Re: No Consent

I agree with the previous advice to the extent it says you are in a very tough spot, but I'd like to add some further legal analysis and suggestions, by topic:

Your Gift: When you added your partner's name to the deed" (more accurately, to the title), you made a gift. Gifts of real property can be made by deed, and are irrevocable upon delivery of a properly-executed deed. No consideration is required. It is possible to create a joint tenancy in such a situation, but more likely you created a tenancy in common. Joint tenancies are always equal, and among two joint tenants ownership is 50-50. Tenancies in common are also equal unless the deed says something else, e.g. 90-10. It is possible the deed can be shown to convey less than a 50% interest, but this is farfetched. It is also remotely possible the deed can be declared void, in which case the subsequent transfer is also void. The mere fact that you made a mistake of judgment back then is insufficient.

The Transfer to a Stranger: Probably perfectly legal. A part owner (who is not married to the other owner nor a registered domestic partner) can sell or mortgage his or her interest separately from the other interest and generally without consent. There is some law, however, holding that tenants in common (or for that matter individuals who are in a "confidential relationship") are fiduciaries of each other, and that may affect your ex-partner's right to trample on your interests. By the way, did (s)he offer to allow you to buy his or her interest before selling it to the stranger? If not, that's helpful to a breach of fiduciary duty argument.

Marvin v. Marvin: In the famous case that gave us the word "palimony" and dozens of later cases building on it, the courts have given domestic partners additional legal tools for dealing with a disharmonious breakup.

Cotenant Rights: Your new co-owner can move in anythime he wants. Co-owners are entitled to full shared possession of the entire property. Further, either of you can take out loans using your half interest as collateral - but no lender in its right mind would make a very big loan, because half interests are truly "problem collateral."

I'll finish my answer in a second posting because I may be bumping into the LawGuru character limit.

Re: No Consent

Adverse Possession: You may have heard of "squatters' rights," the law of adverse possession that gives someone in continuous and adverse possession of another's property the right to perfect title against the owner of record. Occasionally this works to snuff out the title of a co-owner out of possession. The reason it doesn't usually happen is that the possession of a co-owner usually lacks the element of adversity; i.e., possession of a co-owner is by right. There is, however, an exception where an "ouster" can be shown. An ouster occurs when the co-owner in possession lets the co-owner out of possession know that the latter is not welcome to share possession, and that resistance of some kind would be put up to such co-possession. You may have the elements of an ouster, but you would also need five years of adverse possession and to have paid all the taxes for that period. Another long shot, but worth exploring, and if all the facts are there, it would call for a quiet title action.

Partition: The traditional legal (court) means for ending an unhappy co-ownership is a suit for partition. In a full-blown partition case, after determining by interlocutory judgment that the plaintiff is entitled to partition (usually the case), the property will be "partitioned" and each former co-owner will get his or her fair share as determined by the judge or a referee. Partition used to be by division into smaller parcels, but nowadays physical partition has been largely supplanted by partion by sale and division of the net proceeds. The allocation takes into account each party's excess contributions to necessary expenses such as mortgage payments, taxes, insurance and necessary repairs. An owner in possession doesn't owe rent to owners not in possession. The sale in a partition is usually through a broker and by conventional marketing, not a foreclosure-type fire sale. Many partition suits are settled prior to final judgment, either by an agreed buy-out, by an agreed marketplace sale and division of the proceeds by arbitration, or otherwise. If all else fails, I think you are going to end up in a partition action.

Part 3 to follow.

Re: No Consent

Third and final chapter:

Failure of a Condition Subsequent: A gift or sale of real property can be made upon a condition subsequent ("I hereby give Blackacre to my nephew upon condition that he never use alcohol at Blackacre, and if he does, title shall divest and go to the Church of England"). There may have been a condition subsequent in the deed; trouble is, as far as I know, conditions subsequent must be expressly set forth; I doubt that an implied condition subsequent would stand up. (Worth researching).

Your basic problem is that, on the face of the matter, your gift of a half (?) interest appears valid and the current holder of that half interest is now asserting a facially valid request to be bought out.

My recommendation is to retain a lawyer who can evaluate all the above avenues and assist you in making a choice. I think the most promising of them is to go through the math of a partition to try to figure out what a referee would award the stranger at the conclusion of a partition, if one took place. If reckoning in all the payments gives him very little, and no other approach looks better, file a partition suit.

Re: No Consent

You need to get a lawyer ASAP because you have made a mess for yourself and could be out a whole lot of money if you don't get a favorable court decision soon. Our CA member attorney has extensive litigation and real estate experience.