Legal Question in Real Estate Law in California
I purchased a house with my fiance five years ago. Four years ago when we had lots of equity, I asked to sell. I have never felt safe in the area, and I realized I no longer wanted to live with this man for many reasons. He did not want to sell at that time because he wanted to make more money on the property. The loan has been in my name alone since the beginning because his credit wasn't very good at the time. His credit is fine now, and since 2007, I have been asking him to put the loan in his name. Now there is little equity in the house, and he would have to pay over 80K to refinance the loan. He is unwilling to do that and unwilling to sell, since most of the down payment would be lost. I feel four years of living in misery is enough, and I want to partition to force a sale. How do I do that?
3 Answers from Attorneys
A partition is accomplished by filing and serving a specialized type of lawsuit called a partition action and provided for in some detail in the California Code of Civil Procedure in sections 872.010 to 874.240, about 18 pages of fine print. The law, although lengthy, is subdivided into easily-digestible sub-steps and for the most part can be understood reasonably well by educated non-lawyers.
If there is some net equity in the property, you are better situated to pursue partition than many today, who have negative equity and where partition will not produce enough cash to pay the existing loans, much less selling commissions, court costs, attorney fees and so forth. Still, the economic situation today makes partition a harsh and costly conclusion to their co-ownership.
Fortunately, one of the frequent side effects of bringing a suit for partition is that the reluctant co-owner is brought to the bargaining table and an out-of-court deal of some kind is worked out, allowing the suit to be dismissed before too much is spent. This might be one buying the other out, an agreement to sell without the necessity of a court's involvement, or any number of other possibilities, including arbitration.
Who paid the down payment? Sometimes, grounds exist to re-allocate the record title percentages of ownership to reflect purchase-money contribution percentages under a little-known principle called "purchase-money resulting trust."
Please feel free to contact me directly (I'll be out of the office Monday) if you want more details about cost-effective representation for a partition.
I'm curious how the loan could be in your name alone, but the house owned jointly. I don't know of any lenders who will do that. You should have a knowledgable real estate attorney look over your title and escrow documents to sort things out before you get any advice about your options.
I don't understand how the loan is in your name, but both of you are on title. If the loan is in your name, the lender most likely wants to speak to you, not him.
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