Legal Question in Real Estate Law in California

Re: Partition Action

You can file a partition action in superior court the filing fee would be $200 plus a few dollars. You would then have to serve the brother with the summons and action for partition. The cost for service depends on who does the service, any person over the age of 18 who is not named in the partition action, can serve him. The cost of a professional process server would be around $100.

Most lawsuits do not go to trial until about 12 months after they are filed. In some counties if the parties are ready for trial the time could be some what less depending upon the court calendar.

You can do it yourself, if you are willing to devote the time required to research the law on partitions, the local court rules on procedure and all of the other statutes and court rules that may apply to your case.

It is often less costily to just hire an attorney to take of your case, rather than hire the attorney to try and save your case from the mistakes that those who are not familar with the law often make.

Re: Partition Action

Assuming that your facts are correct and the home is still not the mother's name and there has been no probate. The answer to your question is as follows. You'll need to file a partition action; and ask the court to assign a 'referee' to take over and sell the house. It'll probably take an attorney to navigate the court's obstacle course. And the attorney will need to be paid as well as the 'referee.' So that'll bite pretty heavily out of the proceeds of the sale. And although you may not be able to recover these costs I'd certainly ask for them. So I'd start the ball rolling by asking the occupying brother to sign a sales agreement to get the property listed for sale. However, I'd have a little fun with the occupier. I'd start moving my stuff from my garage and stacking it in the front room of the house. I'd have the other brother do the same. I'd ask the local police or sheriff to make a disturbing the peace call so that I could get access to the house if the occupier causes a problem.

Re: Partition Action

You should have a real estate attorney help represent you in a partition action. If the action is contested, it may take a year to resolve at trial. Natually, the case may settle at any time prior to trial. If it is a default, a judgment may be entered prior to 3 months, but them a sheriff must sell the property. Our firm handles cases throughout California. If you fax me any documentation including the title to me, I will provide you with free consultation and tell you what I would charge. Our fax number is 714 363 0229. Also see www.larryrothman.com

Re: Partition Action

Assuming the facts are accurate, a partition action is appropriate. This is a somewhat specialized kind of lawsuit. All parties claiming an interest in the house need to be parties. Any brothers who don't join in as co-plaintiffs would have to be sued as defendants. Further, any mortgage lender or other party with a significant lien should be named as a defendant, even though they aren't doing anything wrong. That gives the court full jurisdiction and binds everyone to the result.

Futher, it is necessary to prepare and file a notice of pendency of action (or 'lis pendens') and record same at the courthouse. The law makes it difficult for a party other than an attorney to file a lis pendens -- you need a judge's prior approval, if memory serves.

All the parties need to be served with the complaint, a summons, and a copy of the lis pendens. The service rules are tricky and somewhat technical when a lis pendens is also involved.

For all these reasons, you'll probably need a lawyer to do your partition action.

A partition lawsuit is not entitled to any particular priority in the courts, and the time before an interlocutory order appointing a referee and ordering a sale can be many months. After that comes the listing and sale process, then after a sale the proceeds will be distributed by the court or referee acting for the court, and a final decree (judgment) will be entered.

My experience is that the filing of a partition action brings the recalcitrant party to his feet and results in serious negotiations for an out-of-court settlement.

Either the court's decree or the result of a settlement negotiation can, and should, reflect not only the ownership shares (presumably 1/3-1/3-1/3) but also any equitable adjustments that ought to be made to reflect the value of one owner's exclusive occupancy, repair costs assumed, tax and mortgage payments, and even the fairness and attitude of the players.

Sometimes a negotiation can be aided by agreeing to refer disputed issues to arbitration.

If the matter is settled by negotiations brought on by your having initiated a lawsuit, you may be able to settle, sell and distribute the proceeds in under six months, but that's a guess and will vary greatly from case to case, both faster and slower.