Legal Question in Real Estate Law in California

Let me give you some preliminary ideas in two areas, either or both of which may be advantageous for you to pursue.

First and most obvious, California law (and that of most other states as well) provides a legal escape mechanism for a co-owner caught in a real-property ownership situation that has gone sour. It is called "partition" because in older times, the practical application of the remedy was for the court to divide the real property (i.e., to partition it) between the co-owners. This may have worked well when most property was big farms and there were no laws regulating the subdivision of real property. Now, however, in modern times, most partition lawsuits ask the court to order the property sold, and when that's done, the net proceeds of sale are then "partitioned" (divvied up) by the court between the former co-owners. In dividing the net proceeds of sale, the court will take into account any proof that one party or the other has contributed excess amounts to loan payments, insurance, property taxes, necessary repairs, and the like. Thus, if you've made most of the payments on the loan and maybe paid the taxes and insurance too, you'd get a larger share of the net proceeds of sale. A partition lawsuit takes time and money, and many defendants in such suits suddenly decide to settle out of court when they see the handwriting on the wall.

The other form of legal action that might benefit you, maybe to file as an additional claim as part of a partition suit, is an action or suit to quiet title to the entire property in yourself on a theory of "purchase-money resulting trust." This is possible if and only if you paid a larger part of the purchase money (i.e., the down payment) that you got as your share of record ownership. For example, maybe you paid 100% of the down-payment but only ended up with 50% of ownership as shown down at the county recorder's office. You can, subject to certain limitations, sue to have title corrected to make you the 100% owner.

I would be pleased to review the facts of your case and give you a low-cost representation proposal for your consideration.

It takes more than showing that the down payment was yours to establish a purchase money trust.

If you cannot agree to buy each other out, or split the proceeds, you are facing a partition action. These tend to be foolish because the parties can end up paying court costs and attorney's fees in something that they should just agree to like grown ups.

A partition action is required.