Legal Question in Real Estate Law in California

Re: filing partition

Yes

Re: filing partition

This narrow issue has become a frequent area of practice for me. You may, but, it is difficult as the Statute of Frauds and the Parole Evidence Rule prohibit evidence outside of the deed itself. Contact me directly.

Re: filing partition

I seriously doubt that you can legitimately file a partition action for real property for which you do not hold title. You had better think about an action to quiet title first.

Very truly yours,

Re: filing partition

Your suit for partition could include a cause of action to quiet title; actually, in a partition suit per se, one of the court's duties is to determine the parties' interests and their right to partition, so a separate cause of action might actually be unnecessary! See Code of Civil Procedure sections 872.710 and 872.720(a).

The more important issue here may be the basis of your claim to be a cotenant (e.g., tenant in common or joint tenant) entitling you to a share of title and therefore to partition. (When you say your name is not "on the deed," I assume you mean your name does not appear on the title of record down at the county recorder's office.) Record title represents "legal ownership" and while someone who is not "on title" can often establish an equitable or beneficial interest in real property, record title is accorded substantial weight and there is a presumption that the record owner is also the beneficial owner; the presumption can be overcome only by "clear and convincing" evidence.

There is a doctrine called "purchase money resulting trust" which holds that if X puts up half the money to buy Blackacre, but Y gets 100% of the title of record, and X didn't intend to make a gift to Y, then X is the equitable or beneficial owner of the half interest that his advancement of purchase money should have gotten him, and Y holds that interest as an involuntary trustee for X, and must convey legal title to that half interest upon X's demand.

There may be other theories upon which to enforce your claim to a part interest, but resulting trust is neat because it does not require a written agreement; in fact, in most cases of resulting trust, there is no agreement, some accident or misunderstanding occured, that caused title to end up in the wrong name, in whole or in part.

The mortgage situation is a separate analysis; being "on the loan" is not necessarily related to ownership; but in a partition, the court will order reimbursement from the sale proceeds to any co-owner who has overpaid his/her fair share of certain expenses such as principal, interest, property taxes, insurance, necessary repairs, and the like.

I have handled quiet title, title dispute, partition and resulting trust cases all over the state, at reasonable rates, and I would be heppy to give you a further free analysis of your outlook in court if you contact me with details of your situation, including the basis for your claim to a part ownership.

Re: filing partition

Yes

Re: filing partition

Yes you can file a partition action. However, you can employ other strategies before filing a lawsuit to get what you want (in all likelihood), and with less costs. Feel free to email or call.