Legal Question in Real Estate Law in California

Re: Partition/Joint Tenancy additional questions

Taking your questions in order, which I'll follow with some general comments--

1. Stopping or delaying a partition action falls into two phases. BEFORE a suit is filed, good-faith negotiations that seem to be achieving the other side's objectives will be helpful. No sane person will file suit if the objectives can be obtained by mediation or negotiation. AFTER suit is filed a good lawyer may find defenses and delaying tactics, but that is generally more expensive in the long run.

2. Arguments of financial hardship and/or travel commitments are not very useful, and can be harmful. For example, in a negotiation admitting financial hardship gives the other side a whiff of blood and weakens your other arguments. Also, if an arbitrator or court senses that you may not be able to meet your mortgage commitments (if any) they may be more inclined to require partition as a protection to the other owner and the lender.

3. Verbal commitments with respect to real estate are generally not enforceable and thus may not even be admissible evidence, but if they leak to an arbitrator, judge or jury may tend to color one party as the 'bad guy' and thus influence the outcome.

4. Unless in writing, of limited importance (see above). However, written evidence of a side deal or other understanding re use of the property, an intent to give a right of first refusal, etc. may provide a defense to partition.

5. Although I'm located in Sonoma County, I have a case in Sacramento Superior Court, and also travel there often to deal with state gov't.

In general, partition is made available by the courts as a means for dissatisfied co-owners to end the entanglement. A reasonable offer by one party to the other almost always produces a better financial result for both, as a suit can take 10-25% or more of the property value in fees by the time it's over. A fair offer should consider who made the down payment, who is on the hook for mortgage payments, the fair value of 'rent' while one occupied the property exclusively, 'sweat equity' and the like.

Re: Partition/Joint Tenancy additional questions

A partition action is not inexpensive. No legal proceeding is. What you should do is make an agreement with her that you will get three estimates of value from three different real estate agents in the area. Then, take the three estimates, add them up and divide by 3. That is the selling price you would use.

Then take 7% off of that price, which represents what the selling costs would be (commissions, transfer taxes, other closing costs) and detuct that from the average price, and then subtract any loan against the property. Divide the result by 2, and that is what she would net in cash if the property is sold. That is what she is entitled to, whether sold on the open market or through a partition action.

Of course, if she fights it, she will get less because she will not be able to recover attorney fees.