Legal Question in Real Estate Law in California

Re: Filing a Partition

You might be entitled to more than a down payment. See if you can work something out with him. If you can't, consult with an attorney. You might have to file a partition action.

Re: Filing a Partition

Maybe. However, the approach (thinking in terms of recovering the downpayment) is mildly off base. You should probably be asking yourself (and your advisors) (1) how much equity is there in this house, i.e., how much more is the market value than the mortgage?: (2) how much of the house is mine; and (3) what will it cost me to assert my rights and turn my share of the equity into cash?

A really sophisticated analysis would look at tax aspects as well (capital gains or losses, etc.)

For example, suppose the 2003 purchase price of the house was $300,000, and you put down $28,000 and he put down $2,000. In a joint tenancy of two people, record or "legal" ownership is always 50-50, but as payor of 93.33% of the down payment, you are arguably the "true" (equitable or beneficial) owner of a 93.33% interest under the principle of "purchase-money resulting trust."

Such a trust arises when X pays the down payment, or some of it, but Y receives a disproportionate share of legal title. Unless the result can be explained by a contract between X and Y, or the intent of X to make a gift to Y, Y is assumed to hold the excess share of ownership as an involuntary trustee for X's benefit.

The overarching issue is whether the property is worth significantly more than the loan balance. If it now has a market value of $350,000 and the loan balance is down to $250,000, there is $100,000 of equity, and a 93.33% interest is worth $93,333, probably worth filing a combined quiet title (based on the resulting trust theory) to establish your 93.33% ownership, plus partition suit, to force a sale.

Unfortunately, there are several flies in the ointment.....partition suits can be expensive. Selling will probably result in paying someone a commission, reducing the pot of money to be split even further. Finally, a co-owner who has paid a disproportionate share of expenses such as mortgage payments is usually entitled to reimbursement from the partition-sale proceeds.

Given the sad state of the housing market and the likelihood that there isn't much (if any) equity in the house, I think running the numbers is going to produce a discouraging result.

Finally, I need to add that I do not see any theory on which you could just march into court and file a suit to get your $28,000 back, as a specific lump sum of money. Your only route is to partition and accept the result, which might be lotsa money if you win a resulting trust action AND the property has a lot of equity from appreciation, but this is unfortunately probably not gonna be the case.

Maybe your starting point is to get a current market indication from a freindly local real estate office.