Legal Question in Real Estate Law in California

Re: Joint Tenant Rights

I will join in the previous advice: doing nothing is very unwise......one cannot predict exactly what will happen, or when, but very likely you will lose your credit rating, your equity, or both, if you just wait.

Filing a suit for partition is almost certainly the right strategy. The time and cost may not be the great stumbling blocks you see them to be, for the following reasons:

(1) Most partition actions are settled "out of court" before trial and final judgment. The mere filing of the suit usually results in the unwilling owner suddenly agreeing to negotiate or even to sell out or join in a sale through a broker in the regular marketplace.

(2) Initiating a partition action may forestall the lender from instituting foreclosure proceedings, since the lender knows that partition would result in a full pay-off of the loan.

(3) Even if the partition action went to trial and judgment, you would probably end up with more net proceeds, after paying your lawyer, than you would receive in a foreclosure.

(4) If you contributed more than 50% of the down payment, in a partition you might get more than 50% of the equity. That wouldn't be the result in a foreclosure on a deed of trust.

(5) In a partition, you could be reimbursed for some legal costs and any disproportionate contributions you made to maintenance, improvements, taxes, interest, and other expenses.

(6) In a partition, if you were ousted from possession through threats, fear, force, etc., you might be able to recover rent for your loss of occupancy.

If the cash cost of retaining a lawyer would be more than you can afford, contact me for a quote based on results. I have recent experience with difficult partition cases and got good results.

Re: Joint Tenant Rights

I agree that doing nothing is the worst thing you can do. In all likelihood, given the current climate of the real estate market, you stand to loose not only your credit, but SUBSTANTIAL SUMS OF MONEY. If you cannot afford to hire a lawyer, and cannot take advantage of Mr. Wipple's offer, I suggest you contact your local bar association to see if they can give you the name of a legal services organization who can represent you either on a contingency fee basis, or a sliding scale arrangement where you pay what you can afford.

Re: Joint Tenant Rights

It is not entirely clear to me what you mean by "calling his bluff" before foreclosure. If he stops paying the mortgage, it will take several months before the bank initiates foreclosure and foreclosure takes 4 a minimum of 4 months from beginning to end. In my opinion, waiting for him to "come to his senses" is a foolish gamble. If he does let it go to foreclosure, he might NOT come to his senses and he might also decide to keep living there without you and keep making the payments. Unless you file a partition action, you really have no leverage at all.

If the house goes up for public auction, you do risk losing everything. If the house is sold for more than the auction price, the proceeds would be first applied to the morgage and then any junior liens. Whatever is left would be distribute to you and your ex-boyfriend, so you could stand to lose a LOT of money if it sells for less than fair market value at the auction and that is OFTEN the case at a foreclosure auction.

By the way, there is nothing preventing your boyfriend from borrowing money against the property. I recommend contacting a real property lawyer in your area without delay for consultation on a partition action.

Re: Joint Tenant Rights

You can have the property divided. The court will determine the equitible share for each of you. Call me directly at (619) 222-3504.

Re: Joint Tenant Rights

If you are on the loan, your credit WILL be damaged. If there is a foreclosure, you may get a portion of the equity, but likely not what you would have received as fair market value. Not doing anything is like the ostrich sticking his head in the sand. It is a very vulnerable position to be in. Sitting and waiting will accomplish nothing.