Legal Question in Real Estate Law in California

Re: Dissolution of joint tenancy

Make her an offer that you think is fair. If she won't budge, then in many ways the problem is hers because you have possession of her house. Her option would then be to file a partition lawsuit, which is hard to do when you don't have any money. If you want to be proactive, you could file such an action yourself (there are also potential advantages relative to a possible award of attorney's fees). By the end of the suit, the judge will have established a buy-out price and you can move on with your life.

Re: Dissolution of joint tenancy

While it is true that joint tenants are presumptively equal owners, that presumption is rebuttable, and under the facts here, it would be fairly easy to rebut the presumption and show a court that you are entitled to more than half, probably more than 70%, of the net equity upon a sale partitioning the property.

If estate planning were a consideration, I might suggest severing the joint tenancy by deeding your interest as joint tenant to yourself, or your trust, as tenant in common. However, this step is probably not worthwhile for a younger person in good health.

One basic rule here is that, despite how legal title is held, equitable title tends to follow purchase money, i.e., the down payment, unless there is a contract between the co-buyers or evidence that a gift was intended. This is the principle of purchase-money resulting trust.

Also, upon partition, one co-owner can claim against the other for expenses reasonably incurred for mortgage, taxes, maintenance, etc., and often for improvements; however, a co-owner out of possession can counterclaim for third-party rents collected by the owner in possession (but not for "rent" from the co-owner himself, since each co-owner is entitled to possession of the entire property).

You don't say whether you are both liable on the mortgage, so I assume you are; I also assume there is no contract between you (written or oral) covering your joint finances.

A part of your strategy should be that any deal between you resolve all joint financial matters, and if that requires refinancing the property, I would make that a moderate priority, and any cost or detriment you incur (including nuisance value) to do a re-fi should further reduce her share, or if not, should be an incentive to cooperate.

One way to "improve communication" and get a realistic negotiation under way is to initiate a lawsuit for quiet title (to a 70% interest in you) and for partition, with reimbursement or contribution for your expenses. Your process server should be able to track her down, and after that, you and your attorney will have no trouble at all carrying on a meaningful dialogue with her attorney.

Your goal in filing a suit would not be to carry things through trial and court-supervised sale, but to bring her to the negotiating table.

Re: Dissolution of joint tenancy

Well I don't want to pour salt in the wound but given your track record and some probability that you don't have a written agreement between you two in the event you broke up don't you, personally do anything to screw it up even more. Having handled numerous of the situations they are not just partnership dissolutions but they carry the same emotion as in family law cases. Each has its own idiosyncrasies because of the personalities of the people involved. Now for my advice, get yourself a real good specialized real estate attorney. Yesterday, tell him/her every detail applicable to every financial transaction regarding the property. It would help if you have receipts and canceled checks as well as the original documentation given to you by the title company in hand when you see the attorney. Then if you like the attorney and he/she likes you and you come to an agreement will listen to their advice and the alternatives they may propose, and then authorized them to go forward.I have been practicing law in the San Francisco Bay area for approximately 35 years and expert in the area in the category in which your question is placed. I feel I can help you in this matter and if you wish to consult with me please contact me at 925-945- 6000.

Re: Dissolution of joint tenancy

Actually, I am handling a case very similar to this one. Longer time together, but otherwise pretty much the same.

I agree with co-counsel that this is practically a quasi-divorce, however I do not agree with the "equitable title" theory.

Absent a written agreement, you have a real problem. You should be entitled to reimbursement for your additional expenses, but not the down payment, there is case law to the contrary. Your additional contributions to repairs and upgrades may also allow you a larger claim in the increas of value that those improvements have resulted in, but they, unfortunately, will not be exclusive to you.

YOur best approach is to get a proper appraisal, a realty agent is not proper, and make her an offer. If she does not accept, then you are left with onl the option of filing a quiet title action, to claim the whole, or a partition by sale action, to claim your rightful percentage. Whichever you file, expect her to at least file an answer. Though co-counsel thinks you can scare someone off because of a lack of funding, but any attorney who sees she has her name on title will take the case on contingency and take his fees from her share of the sale proceeds.

Our office is relatively close to you, we are in Pasadena, perhaps you should take the time to come by so I can take a look at what paperwork you have and we can discuss your potential options.

I can be reached at 626-578-0708 or through my firm's website at www.No-Probate.com.

No matter your choice, you should transfer the title to yourself as a tenant in common IMMEDIATELY. If something should, by some odd chance, happen to you, then she will automatically own the entire property under the current title of joint tenants. You need to prevent that from happening as soon as possible. I can assist you with that change as well.

Again, please feel free to contact me to set up a free consultation at 626-578-0708.

Scott Linden