Legal Question in Real Estate Law in California

Re: Division of real property

First, when you say 'unmarried couple' I assume you mean not married to each other NOR to anyone else. The existence of a jilted spouse could change things.

Second, when you say 'list property in both names' I assume you mean that the recorded deed to the property shows both members of the couple as tenants in common with equal shares. If the deed does not specify any percentage it is presumed to be 50-50. If there is a stated percentage other than 50-50 or it is a joint tenancy with right of survivorship, my answer could be different.

I also assume there is no written contract and not much else in writing, but probably some documents like the purchase offer, escrow instructions, loan application, and the note and deed of trust itself which serve as documentation of certain aspects of the deal.

California courts don't like to apply family-law concepts like community property to the situations unmarried couples find themselves in. Therefore, you should probably shed any notion that family law cases are helpful.

Think of the couple as two unrelated people, M and F, who did a business deal together. The applicable law will be (largely and before most judges at least) the law of contracts and partnerships. Ordinary business law.

Absent any express or implied contract to the contrary, M, the person who put up the purchase money, will be the equitable owner, notwithstanding the way title is held, and should be able to obtain full legal title upon proof of the facts in a suit to quiet title and/or for declaratory relief. This outcome is based upon the doctrine of "purchase-money resulting trust."

The contribution of one-half of monthly mortgage payments by F can then be looked upon as F's rent as a tenant in M's house (assuming the amount is appropriate).

However, F will argue, and the court will listen, that there is an implied contract to own and share the property equally. Based on what you've said in one short paragraph there isn't evidence of such an agreement, but F will dredge up every fact that supports a finding that the deal was to share the property, and the court might agree.

So, you see, it's very fact driven. M takes all except to the extent there was a contract, joint venture or partnership with a contrary understanding. M also needs good evidence to support his claim that he paid the down-payment, or the recorded title controls.

So, in figuring out what would happen in court, rely less on platitudes and universal rules, and just assume the court will do its best to figure out what the real deal was between M and F, and will then try to enforce it or provide the right remedy for its breach.