Legal Question in Real Estate Law in California

Re: One third owner wants out

The usual exit strategy for an unhappy co-owner, where negotiation has failed or obviously won't produce results, is to file a special kind of lawsuit called a partition action.

Partition got its name from the early practice of courts in ordering a physical subdivision of the property among the owners. This might have worked well when John and Mary inherited their parets' farm, and the court could award Mary the house and two acres, and John got the barn and the rest of the acres, but in an urban setting and with zoning and subdivision restrictions this is seldom practical any more. So, the modern practice is for the judge to order the property sold and the net proceeds divided. The sale is usually conducted by a real estate salesperson by normal means, not a courthouse-steps auction sale. The division is not strictly along percentage of ownership lines; the court must also consider giving credits, reimbursement, etc. to an owner who has contributed more to the down payment, mortgage payments, taxes, insurance and necessary repairs. In your case, you perhaps could get some compensation for being ousted from possession, and your share wouldn't necessarily be docked for the mortgage payments they've been making. Changing the locks and other hostile acts denying you your right of possession probably constitute an ouster, and after an ouster your non-contribution to any mortgage should not affect your money share.

By the way, a close examination of the facts surrounding your putting up 100% of the down payment but getting only 1/3 of the title might show the existence of a purchase-money resulting trust, a doctrine under which you might be able to show that you are entitled to 100% ownership, not just 1/3; one of the things you'd have to show in order to assert a resulting trust would be that you didn't intend to make a gift of the 2/3 that shows on the legal title as being "owned" by the others.

I have kind of a sub-specialty in handling partition and resulting trust cases, and I would be willing to take a look at your documents and facts and perhaps take your case on a modified contingency arrangement of some kind that would be affordable. What California county is the property in? I should add, most partition cases are resolved prior to full trial, often by agreement of the parties to a buy-out or a private sale, sometimes with the allocation of the sale proceeds to be decided by private arbitration.