Legal Question in Real Estate Law in California

Re: Getting whats due

First, your brother has an obligation to support his children, whether or not he is married to their mother. But, your question wasn't about this -- so fast-forward to the real property issue.

With respect to the house, there are two important but largely separate issues to consider: who owns it; and who owes in the mortgage.

Taking the ownership question first: There are two ways courts look at ownership of property. First, there is so-called "legal title" which is what you will find by examining the chain of deeds at the county recorder's office. When Joe and Mary buy a house together, the recorder will have a record of a deed reading, perhaps, "Joseph and Mary, as joint tenants" or "Joseph and Mary, tenants in common." This kind of ownership is what is meant when people refer to being "on the deed."

In addition, courts recognize a so-called "equitable title," not necessarily the same as what the recorded chain of title shows. Equitable title refers to how ownership ought to be reflected if all the facts were presented to a court as to who ought to be the current owner.

Perhaps the most common example where legal and equitable ownership is different is when a property is sold. As soon as the contract of sale is signed and contingencies removed, the buyer becomes the equitable owner, but he will not become the legal owner until the close of escrow and delivery of the deed. Also, with property held by a trust, the trustee is the legal owner but the beneficiary of the trust is the equitable owner.

OK, when Jack and Jill (not married to each other) buy a house with Jack's money used for the down payment but taking title as "Jack and Jill, as tenants in common," each receives a 50% legal interest in the house, BUT by virtue of putting up 100% of the down payment, Jack MAY be considered the 100% equitable owner, and be entitled to 100% legal ownership upon demand.

I say "MAY" be entitled to 100%, because it may be held that, although Jack put up all the money, he really intended that Jill have a 1/2 interest as a gift.

Property owned by disagreeing co-owners can be ordered sold, and the net proceeds divided fairly, by either co-owner bringing a lawsuit seeking the "partition" of the property.

Contribution to down-payment and the understanding of the parties at the time of purchase are the main factors a court would consider in dividing the proceeds of sale. The court should also give some weight to payment of principal, interest, taxes and maintenance, who has had the benefit of residency, and other fairness factors.

If as it seems from the Zip code that the property is in Solano County, I'm nearby and I could give your brother or you additional free advice by e-mail or phone.

Re: Getting whats due

we would need more details to give you a complete answer to your question. however, in a nutshell, title is more or less a "presumption" of ownership interest, however, it can be rebutted if your brother can show clear evidence that he used his funds exclusively for the downpayment. if this is the case, he has a strong shot at prevailing in getting his legal interest in the property from either a contractual, tort or unjust enrichment legal theory depending on the exact factual circumstances at play here. if he would like a free phone consultation, have him email us directly with his contact information.

Re: Getting whats due

Your question states that the house is in his name. If that is correct, it cannot be sold without his signature. If you made a mistake, and it is under her name, then he may need some help in the courts if they are not willing to work things out ammicably.

Re: Getting whats due

Again I say to the person who wrote the question not sufficient facts. This involves two areas of law, family law and real estate law which very much overlap. I have no idea if she has a right to anything because I don't know what if anything she has contributed to the residents. If there was an agreement between them, an oral agreement even though most agreements regarding real property must be in writing, has held to be sufficient in California under certain circumstances. I do not know there is such an agreement and what the parameters of that agreement are. I take it to children are his aunt, aside from an interest in the residents she would have the ability to get child support from him. Child support and her interest in the house are two different things. It sounds like he needs an attorney yesterday. I practice real estate law but do not practice family law. If he wishes to consult with the about her interest in the house, if any, my phone number is 925 -- 945 -- 6000. I am in the San Francisco Bay Area.