Legal Question in Real Estate Law in California

Re: partition action

Neither are relevant in a partition action. If you are entitled to reimbursement for the credit card issue, you must file a separate suit. It is unrelated to the partition.

The name on the loan does not affect the right to partition. Either of you has the absolute right to partition.

The only issue for the court is to divide the proceeds fairly, and each of you is entitled to credit for what either paid towards the property, whether it was for mortgage, interest, tax, insurance, maintenance, etc. During the partition action, each of you has the opportunity to present evidence to the court.

I presume you have obtained a title guaranty and have requested the court appoint a referee to sell the house.

Good luck. Call or email if you need assistance.

***No Legal Services or Attorney Client Relationship - Although this email may provide information concerning potential legal issues, it is not a substitute for legal advice from qualified counsel. You should not and are not authorized to rely on this email as a source of legal advice. Until a formal Retainer Agreement is executed, any communication between you and The Guerrini Law Firm cannot create any attorney-client relationship between you and The Guerrini Law Firm.***

Re: partition action

Do you mean that you filed the partition action without using an attorney? If you are using an attorney, these questions should be addressed to the attorney, and if you don't receive quick and credible answers, you should consider getting a new attorney, which you can do at any time.

If you filed in pro. per., you have taken on a massive procedural task, and unless you are very savvy, you've probably already made mistakes. For example, the law requires that you file, serve and record a Notice of Pendency of Action (often called a Lis Pendens) on all known claimants immediately upon filing the suit. However, the law also says only an attorney may record a lis pendens without prior approval of a judge. If you've done all that, congratulations. If not, your oversights are not necessarily fatal, but need to be corrected.

Next, it's very unclear how you can have a joint tenancy if you acquired title at different times. Ordinarily, adding someone to title makes them a tenant in common, and not a joint tenant. I suppose a joint tenancy could be created, but it would require artful drafting of the deed(s).

Next thought is that payment of 100% of the down payment where someone else goes "on title" can give rise to what's called a "purchase-money resulting trust" in which the person on title holds said title or partial title as involuntary trustee for the person who put up the money. In your case, a lawyer would have to dig deeply into the circumstances under which your relative and co-owner acquired title two years later. It looks as though you made a gift; if so, this would negate any claim of a resulting trust. Nevertheless, if there is a lot of equity in the house, you should explore this possibility to claim 100% instead of a lesser interest.

The credit card and similar issues probably won't be resolved in the partition suit unless they directly relate to the costs of owning and maintaining the property (taxes, insurance, mortgage payments, and necessary repairs). Perhaps they could have been addressed in additional causes of action within the main suit, but probably are better handled in a separate lawsuit.

Finally, there are definite legal principles as to what costs and expenditures are entitled to reimbursement "off the top" before the balance is split between the former owners at the end of a partition action. You may have to reimburse some expenses, on net balance. Knowing the rules is well beyond most attorneys, let alone folks with no legal training.

I specialize in partition matters, and would be interested in discussing your case with you, if appropriate; e-mail or call me.