Legal Question in Real Estate Law in California

Re: possession of home law?

If what you describe happens, your stepbrother would be in actual possession. However, each of the co-heirs would be co-owners, probably as tenants in common, and each of you would have the right of possesion along with the others.

In other words, the law gives you the right to be roommates.

Since in the real world this is unlikely to be everyone's choice, what you should do is either rent or sell your interest to any co-owner that wants to live in the house. If the co-owner in possession won't cooperate in a fair arrangement, any of the co-owners can sue for a court-ordered "partition" of the property. Used to be that partition was usually done by subdividing a property like a farm into smaller units, but nowadays due to urbanization and laws restricting subdivision, partition is more often done by sale and splitting of the net proceeds.

Re: possession of home law?

If he moves in, he becomes a tenant. Upon your mother's death, the house will need to go through probate (unless your mother puts all these people on the deed, which I would not recommend). The adminstrator who will be in charge of your mom's estate (it could be you) will then be charged with selling the property, which usually means the tenants vacate before the sale. If your relatives refuse to leave, the adminstrator will have to commence an eviction proceeding. The fact that your relatives may have an interest is not relevant to their desire to stay, unless everyone agrees to some type of buy-out arrangment (i.e. your relatives borrow money to buy your interest). Make sure your mother has a will expressing her desires before she passes.

Re: possession of home law?

A co-owner is not obligated to pay rent to other co-owners when living in the property. It would have to be by agreement. Your mother should do some estate planning to fully express her intentions of what to do with the property. Could save a bunch of money in probate and capital gains tax if done properly.

Re: possession of home law?

Under no circumstances but you must seek the aid of a probate litigation attorney who can attempt to make sure that what you say does not come true. There's a fiduciary duty in this kind of situation. If he does certain things that are in conflict of interest with his position, that of your mother and he, then maybe he is the wrong person for the job. Of course if he is there to take care for and none of you are helping out, you may want to start looking at what your roles are to be in this situation. Yes, he is doing this partially out of love but if he is not doing something else because of this care, his job, his profession his occupation, then he should be compensated for doing this in a reasonable manner. Look at this situation carefully and get the advice of the attorney after you give the attorney all of the facts and paperwork relating to the situation. Or, is this how you view what if you were in his place. Don't jump the gun and find out what's true facts are before you start asking these kinds of questions. i have been practicing law in this speciality for over 30 years in the san francisco bay area and if you wish to consult with me you can contact me at 925-945-6000.