Legal Question in Real Estate Law in California

Re: Real Estate Buyout

If you filed a partition action all of the money each of the joint tenants have paid toward the mortgage (including the interest on the mortgagte), taxes, insurance, maintenance, etc., would be used by the court to determine each joint tenant's interest in the property.

Re: Real Estate Buyout

I will give you a different answer.

First, as a kind of housekeeping matter, a lawyer would want to inquire as to whether there are two joint tenants (your marital community and your father), or three - you, your wife, and your father. Joint tenancies, especially three-party joint tenancies, are a little hard to form and a bit fragile, so we would want to make an initial inquiry into how title is held.

I also assume that the down-payment was shared in proportion to the title taken (1/2-1/2 or 1/3-1/3-1/3).

So, unless there is an agreement between you that varies the record ownership, or a disproportionate contribution to the down payment was made, the house will be held, of record (legally) AND equitably, 1/2 - 1/2 OR 1/3 - 1/3 - 1/3. The payments on the mortgage, whether principal or interest, do not alter the ownership percentages.

However, the analysis doesn't end here. Excess contributions by one co-owner will give rise to a right of reimbursement.

A cotenant out of possession can require the cotenant in possession to account for and share rents the cotenant in possession has received from third parties. While the cotenant in possession doesn't have to pay any rent to the cotenant out of possession, since each co-owner has the right to occupy the entire property (cotenants are sort of involuntary roommates, in effect), on partition the court can offset the rental value against the claim of the tenant in possession for amounts advanced for principal, interest, taxes and insurance premiums before distribution of the sale proceeds.

Amounts spent for repairs are usually apportioned and reimbursable as well, but the costs of improvements are less likely to be ordered to be shared and reimbursed unless all cotenants have agreed to the improvements in advance.

Note that there can be a big dollar difference between unequal payments altering the ownership shares (which they don't) and giving rise to a reimbursement right (which is what happens).