Legal Question in Real Estate Law in California

Well, you may not like the answer, because your sibling in possession has some rights that you may not have figured on. On the other hand, the co-owners who are not in current co-possession also have rights, which may properly be asserted in a court proceeding, but not through self-help.

First, you need to follow the law regarding the rights of co-owners out of possession as set up in Civil Code section 843.

Second, Small Claims probably lacks jurisdiction.

Next, the sibling in possession doesn't owe rent. Any co-owner is entitled to possession without payment of rent to any other co-owner, unless there is an agreement to the contrary. The sibling in possession is entitled to live there for free.

If either of the co-owners who are currently out of possession desire to remedy the ouster and go into shared possession, the starting point is to serve the written demand called for in Civil Code section 843(b). I'm rather doubtful, however, that you want to be a roommate with the sibling that lives on the property currently. That's about all you'd gain from a successful claim under 843.

A perhaps more powerful tool is to file a suit for partition of the property under Code of Civil Procedure sections 872.010 et seq. Such a lawsuit asks the court to order a sale of the property and a division of the net proceeds, after liens are paid off, to the co-owners in proportion to their ownership interests, after adjustments for expenses paid in different proportions (such as mortgage payments, insurance, property taxes, and certain maintenance costs).

I see you are nearby, and I am somewhat of a specialist in this area, and I'd be pleased to give you a no cost, no obligation analysis if you contact me off-site and provide some additional details.

Mr. Whipple has given you a correct but rather convoluted answer. So let me simplify. Every owner has a right to occupy co-owned property rent free unless there is an agreement otherwise. If you want to share occupancy and a co-owner won't let you, you can sue to force them to let you live there, but that doesn't sound like what you want. The answer to your problem, particularly if you want to sell, is a partition action. It is called partition because in the distant past courts could divide a piece of property into parcels and give part to each co-owner. Today that is not allowed due to modern land use, zoning and subdivision laws. So the courts partition by sale. In 99.9% of the cases, the co-owners agree on a buy-out or mutual sale once one of them files for partition, because if they don't, the court will order it sold like a foreclosure, which will bring a MUCH lower price than an agreed sale. You can also obtain orders in the partition proceeding to allow you onto the property to prepare it for sale, etc. If your brother really intends to be as much trouble as you suggest, you will need an experienced litigator to deal with your situation. I have over 25 years of real estate litigation experience. If you would like further assistance, please feel free to contact me.