Legal Question in Real Estate Law in California

Re: forced home sale

I have a sort of general answer for you, but I could really give a more specific and crisp response with the following additional information:

First, I see your Zip, but in what county is the home located? This would determine proper venue for any legal action.

Next question would be how title to the home was held; I assume your mother's 50% was in her trust, so perhaps her husband (your stepfather, I guess) held his half as a tenant in common, and perhaps he has his share in his separate trust? In other words, are we dealing with two trusts, and if so, do they cross-refer to each other, or is there perhaps a single trust? Do you have a copy of her (or both?) trust(s)?

The husband and his children both do and don't have to follow the terms of your mother's trust, depending upon the particular subject. As a 50% owner, the husband has substantial rights of his own, including the right to occupy and use 100% of the house. Further, I don't see how a wife's trust can require the future sale of her husband's half interest. If X and Y co-own a property, X can't command Y to sell to her, nor to her estate, nor, for that matter, at all. Of course, this can be modified by a contract between X and Y, but you haven't said anything about a contract between your mother and her husband.

The trust may contain a provision requiring the sale of the 50% that's owned by the trust, but (a) who would pay much money for a half interest with a stranger? and (b) any provision in the trust calling for the trustee to seel the 1/2 the trust doesn't own would be utterly void, just like a provision calling for the trust to sell the Golden Gate Bridge.

My answer is too long (over 3000 characters) for a single post, so I'll submit this much and follow up in a few minutes with the balance.

Re: forced home sale

Here's the rest of my answer:

Further, I don't believe you are allowed to charge the husband rent. As I said, a 50% co-owner of real property can occupy and use the entire property, and that means rent free. All co-owners of real property (with a few exceptions) have an undivided right to possess the entire property, even if they own only 1%, or less. I also question whether a provision in the trust requiring a co-owner (with the trust) to make repairs is enforceable, but before insisting that it isn't, I'd have to research the matter. If he did make repairs, however, the trust would be liable for 1/2 the cost!

The best thing to do is to get sound legal advice. If I were giving it, I would recommend filing a lawsuit for partition by sale under Code of Civil Procedure sections 872.010 et seq.

Partition is the legal process for disentangling the affairs of unhappy co-owners of real or even personal property. The filing and service of the suit itself will usually propel the foot-dragging co-owner into a prompt settlement, out of court, which in your case would include an agreement to retain the agent and probably to submi remaining issues (reimbursement of expenses, rents, etc.) to speedy and binding arbitration. If litigated, the judge would probably issue a decree producing sunstantially the same results, but after a lot of time and expense.

My answer is, of course, based on very limited facts as to your situation. As I've tried to say, the accuracy or usefulness of the answer could be affected by facts I don't know about, such as a contract between the mother and husband, or perhaps the property is co-owned as business partners rather than as tenants in common; if they had been joint tenants, the survivorship aspect would really shift the balance in favor of the husband (but given the holding in trust, this seems a bit unlikely).

I have substantial experience with partition cases and would be pleased to go over this with you in detail if you contact me directly.

Re: forced home sale

You don't say who the Trustee of the trust is, but I assume it is the husband. You have to file a lawsuit against the Trustee to get a court order, or, get a lawyer who can send a letter explaining that as a fiduciary the trustee is liable for any and all financial losses to you the beneficiaries caused by his or her malfeasance. This usually wakes them up. Don't waive any rights.