Legal Question in Real Estate Law in California

Re: property question..

When two people who aren't married to each other buy a house together, the ownership is presumed to be as stated in the deed.

Typically, unrelated co-owners take title as tenants in common, but occasionally as joint tenants. During their lifetimes, the differences between the two are usually not important.

If your deed specifies that you are joint tenants, or that you are tenants in common without specifying a percentage other than 50-50, then you are "legally" and presumably equitably as well equal co-owners.

The presumption of equal ownership can be challenged if either of the following exist: (1) a written agreement; or (2) unequal contributions to the down payment under circumstances showing that the person who paid more did not intend to make a gift of the excess payment.

So, if your boyfriend paid $40,000 of the down payment and you paid only $10,000, he could probably argue that he is an 80% owner. This is due to a principle called "purchase money resulting trust." However, the percent ownership has nothing to do with how much anyone earns.

Further, unless you have a written buy-sell agreement, no one gets to buy the other out, and neither of you is obliged to sell to the other. Instead, there is a process by which one unhappy co-owner can force a public sale by filing a special kind of lawsuit called a "partition."

In a partition, the court will order the house to be sold and the net proceeds (after paying the mortgage, selling costs, etc.) divided between the co-owners. Adjustments in the amount distributed to each will be made to give credits for excess payments either party has made for necessary expenses such as mortgage payments, property taxes, insurance and necessary repairs.

It is certainly possible for one of the co-owners to buy the property as a part of the partition process, but the property is available to all would be buyers and could be sold to a higher offeror. Also, note that most partition suits settle before trial by the parties agreement on a buy-out or a non-court-supervised sale and distribution of the net proceeds.

So, the bottom line is, it's 50-50 except for (a) possible adjustment of the ownership percentages to agree with the down-payment percentages; and (b) adjustment to reimburse whomever paid an excess of costs when the property is sold. Contact me with more facts if you want a more detailed explanation (no charge).