Legal Question in Real Estate Law in California

Re: Cotenant won't give me a key to the house.

Mr. Roth's statement that you are entitled to live there or rent out the property is true in a very technical sense, but of no practical importance under the current state of affairs; it would conversely be true, if you think about it, to say that the other co-owner has the right to live there and rent it out, as he has done. So who prevails? As I indicated in my previous answer, the guy who gets into possession first must prevail against the guy with equal rights as a co-owner, but who lacks current possession and could not legally be placed in possession except by court order. As I said earlier, breaking and entering your own house is still breaking and entering if someone else is living there at the time.

In short, the law does not favor self-help in regaining possession of real property against someone already in possession. This is why we have an unlawful detainer procedure, in court, for landlords to get their rental properties back from tenants who don't move when their leases run out or are revoked for breach.

When one co-owner refuses the other owner(s) access and joint use, this is termed an "ouster," and one procedure for establishing that an ouster has occurred and beginning the removal process, or to get damages, is to invoke the procedure outlined in Civil Code section 843. This is probably the mildest form of action you can take, a lot less of an earthquake-causing measure than a partition.

You can also bring an action called ejectment, or for an accounting for rents and profits.

I would recommend that you give strong consideration to a partition. The other remedies will only perpetuate a badly deteriorated situation, in which you cotenant is further fractionalizing his interest with these gift deeds (perfectly within his power to do that!).

Re: Cotenant won't give me a key to the house.

Unless you have an agreement with your friend to the contrary, your friend may transfer his interest in the property to whomever he chooses. You still own 50% of the property, however. You are now a tenant in common with the others.

Further, it appears you have been ousted from the property. You can sue for partition by sale. You may also be able to sue for the loss of fair rental value during the time you have been ousted. Short of a lawsuit, however, and depending on the financial make up of your friend, you may want to seek a buy out of your interest. This may be cheaper and a more immediate result. You can demand a buy out upon threat of a lawsuit.

We have and are handling several matters like yours throughout California. Feel free to email or call anytime.

Re: Cotenant won't give me a key to the house.

Cotenants don't have an automatic right to divide the house on a "this is my half - this is your half" basis. They have an undivided right to co-possession of every square inch. So, while contracting for the arrangement you suggested would make sense and would be perfectly legal, absent a contract you can't go into court and ask for an order giving you exclusive possession of any particular half of the property. (That would, by the way, be very close to a partition in practical effect!)

Further, the law giveth and the law taketh away. While you have a right to shared possession of the entire property, you can't enforce that right by threats, force or stealth. It is possible to commit an unlawful forcible entry, or even a burglary, on property you own, if someone else, rightfully or wrongfully, is in possession.

I've done some recent research on your problem, and somewhat oddly, there seem to be few if any recent reported (published) cases. A few older cases (1930s - 40s) seem to indicate that the right approach is delineated in the Civil Code, section 843.

Re: Cotenant won't give me a key to the house.

You are entitled to live there or rent out the property, but the better solution is to bring an action to partition the interest which as a practical matter will force a sale of the property and appropriate division of the proceeds. If you get a locksmith to change the lock or rekey the lock you will simply be escalating a bad situation.