Legal Question in Real Estate Law in California

Re: who gets the house?

Probably not. But, a restraining order willnot be granted absent proof that his presence places you in danger. He has an equal right with you to reside there. You will have to buy him out, or put the property up for sale and split the proceeds.

Re: who gets the house?

I acknowledge that I am a latecomer to answering this question, and I have the advantage of peeking at all three previous answers!

However, I think I have a little different slant on this situation, and I have actually done some research on the issues you raise.

First things first. Co-owners of real property each have the right to occupy and use 100% of the property, and that is true whether the ownership is 50-50 or 99-1. Further, it doesn't matter if you are tenants in common or joint tenants. However, ownership and the right of co-possession does not automatically deny you the right to exclude him with a domestic violence restraining order. Owning property does not give him the right to be a menace on it. You do, however, have to convince the judge that you're not using the restraining order in lieu of filing some other kind of civil action to determine or enforce a property right. You need to convince the judge that, absent a restraining order, you are in real physical danger.

Now, as to the "he wants it - I want it" question. You are presently in exclusive physical possession, and I assume you have changed the locks, etc. to help make sure it stays that way. You have also no doubt informed him in one or more ways that you have no intention of re-admitting him to the situation of 2+ years ago. You are technically depriving him of his right of co-possession; that's called an "ouster" and ouster and its legal remedy is described in the Civil Code at section 843. You should look up, read and understand 843; it is not lengthy or complex. You will see that your position is relatively weak, but not horrible. To regain co-possession, you ex-boyfriend must follow procedures and may not just become a gate-crasher. That would probably be an unlawful forcible entry and possibly a burglary. However, if he follows 843 procedures, he has rights and can enforce them under that law.

As to ownership, it's possible that if one or the other of you contributed unequally to the down payment, that person would be entitled to ownership in proportion to contribution, notwithstanding what it says on the deed. If this is the case, be sure to contact me to ask about purchase-money resulting trusts.

Otherwise, the answer to the "who gets it?" is probably that you both get it, and since you can't get along, one or the other of you will have to buy out the other, sell to the other, sell the whole place privately, or resort to the legal process for unhappy co-owners to unwind their positions, a partition lawsuit.

Re: who gets the house?

My answer exceeds LawGuru's 3000 character limit, so I've cut it into two pieces. Here's the sequel:

A partition suit asks the court to divide the property fairly. Since in modern times physical subdivision is usually impractical, the court will order the property sold, the liens paid, and the net proceeds divided. Someone who has over-contributed to certain expenses such as principal, interest, taxes, insurance and necessary repairs can be reimbursed out of the other party's share. This all assumes there is positive equity in the property. If it is under water, the results of a partition will not make anyone happy nor cover the legal and court fees. However, a party that owes the other cash money on balance can be ordered to pay it, despite a shortfall in the net cash proceeds of sale. The concept or payment is called "owelty."

Please feel free to contact me with details for a further analysis.

Re: who gets the house?

I assume you bought the house as equal tenants in common. Both of you therefore own the house and neither can prevent the other from being in the house. You may have to have a partition sale where after deducting expenses [might be just $10-15,000 for the attorney] the two of you would split the money. The Court probably would let you subtract from his share 1/2 of the payments you made [you owed 1/2 of them as your share]. It would be cheaper to go to a good mediator to work out a solution where you may not be happy but are not bitter or upset by the resolution.

If the restraining order was for violence agaisnt you, the Court will let it stand so he can not harm you. If it is to keep him out of a place he half owns, that hardly would be fair would it? Depending on how the two of you compare to each other in intelligence, being assetive, etc., you may or may not need an attorney for the mediation.

Re: who gets the house?

Had a similar case...a lot depends on ho the home was titled and what the two of you discussed with each other and wih friends.

How was title taken? Who made payments? From what account? How was this funded? Other houslehold bills: Who paid? How split? Who paid taxes?

This can be a complex issue that may require litigation, are you prepared to go into litigation with an ex?

If you'd like to go forward, please feel free to contact me at my office at the number and address provided by LawGuru, or through our firm's informative website located at No-Probate.com.

Warmest Regards,

Scott