Legal Question in Real Estate Law in California

Re: sell without consent of joint tenants

One can file a suit in the proper court to correct, modify or set aside a deed obtained in the first instance by fraud or mistake. Absent conditions such as these that make the deed invalid, you are left with a "partition" suit as the only obvious remedy.

A partition suit asks the court to determine the equitable rights and interests of all claimants to the property (owners of record, lien holders, remaindermen, and so on) and divide the property fairly. In the agrarian past, this was usually done by physical subdivision of a landholding into smaller parcels, but nowadays it is much more commonly done by a court-supervised sale followed by splitting of the net proceeds in proportion to ownership, aftr adjustments for overpayments of certain classes of expenditures by a particular owner (e.g., excess contributions to mortgage, property tax, insurance and maintenance expense).

In a situation such as yours, clients sometimes don't like the partition idea because it requires giving up ownership and possession. They would prefer to be able to force the co-owner to sell out to them. Unfortunately, unless there is an option or right of first refusal or the like in a written agreement, there is no legal way to force a sell-out. Nevertheless, pretty much the same result can be achieved in a partition action in many cases. First, merely filing and serving the suit will often bring the reluctant co-owner to the bargaining table, and a buy-out can be negotiated before the suit goes to trial. Another possibility is to ask the court to include a right of first refusal in its decree ordering sale of the property - if the parties consent to such a provision, or if the court thinks it's reasonable absent a party's consent, you may get the buy-out right. Or, you can just make the winning offer on the property, knowing that half (or two thirds, if there are three equal owners) of the money you're bidding you'll be paying to yourself, in effect.

As to whether you can refinance or sell, the answer is that you can sell your 1/3 interest, but you can't sell your sisters' interests. Same with refinancing - you can only pledge what you own, and since 1/3 of a house isn't very good collateral, you're effectively unable to borrow against the house.

I do partition cases like this all over the state; please contact me if you would like a further free consultation by phone, e-mail or in person.

Re: sell without consent of joint tenants

Impossible to do without their consent. Any co-tenant has the absolute right to seek partition of the property, however, and you could file a lawsuit for what is known as partition. This would permit the property to be sold and the proceeds divided by each co-tenant's respective ownership percentages, subject of course to adjustment for expenses, taxes, mortage, insurance, etc., having been paid by one co-tenant. In your case, you would ask the court to order your sisters to reimburse you for all the monies that you have paid towards the property.

Question: Why are they on title? If they are on there by mistake or via fraud, you can seek to set aside the deed; but I suspect this would be impossible, given that it has been twenty years . . .

You should likely seek out the help of an attorney. We are real property litigators that routinely undertake partition lawsuits and disputes such as this. We would be pleased to review the underlying facts and provide a no charge consult.

Good luck.

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Re: sell without consent of joint tenants

You say they have nothing to do with the house or payment of expenses, etc., but it is likely that the loan would never have been made without their joint credit/borrowing power, which has a value. Moreoever, if you are the only one living in the house, it is likely that a court would determine that you should also be the only one paying for the mortgage, etc, because you are the only one using the house. The only way to get their names off the house (assuming they will not work out some settlement with you) would be to bring a partition action and then the court will order the house sold and the court will determine who will be entitled to what percentage of the proceeds; during the process, you may wish to "buy out" your sisters by way of a loan.