Legal Question in Real Estate Law in California

Re: Want to sell house, ex-husband is on grant deed, he wont let me.

You may have a potentially sticky situation and it illustrates one of the problems with putting someone on title. One solution is to see if he will purchase your interest in the house and refinance the mortgage to take your name off the loan. If this doesn't work, you may need to file a partition lawsuit, which would take at least 6 months if not a year to resolve. In a partition lawsuit, the court determines the rights and ownership interests of the parties. If the property interests cannot be resolved, the court will force a sale of the house and divide the proceeds according to contributions.

Re: Want to sell house, ex-husband is on grant deed, he wont let me.

I assume that all the events occurred after your divorce from the co-owner, including the purchase of the house. If so, the fact that he is your ex-husband is relatively unimportant.

As co-owners, each of you has the right (unless you have waived the right) to force a partition of the property by filing a special kind of suit in court. Traditionally, a partition split the property in half, but this is impractical in modern times, so usually what happens is the court appoints a referee to sell the house by listing with a broker and then the net proceeds of sale are divided between the former co-owners in some manner, not necessarily 50-50, that the referee and judge find is fair after taking and weighing the evidence.

Most times that a co-owner files a partition suit because the other owner won't cooperate, the mere filing of the suit brings about the desired cooperation, because the end result becomes clear to the reluctant owner, and he or she decides to negotiate instead of bearing the expenses and uncertain outcome of a lengthy suit.

Now, on the matter of ownership. Just because the deed makes it look like you are 50-50 equal co-owners, this is not necessarily the case. There is a principle called "purchase money resulting trust" which says that when X and Y buy a house and become co-owners on the title, but X provided the down-payment money, X may be considered the equitable owner of 100% and Y merely holds part title as trustee for X.

The presumption of a purchase-money resulting trust can be refuted by evidence showing that X intended to make a gift of a 1/2 interest to Y. Depending upon any writings between you -- such as a contract -- or even oral testimony from third-party witnesses -- it could be shown that a gift was intended, or that there was no gift and you should be treated as sole owner. This is where the former marriage relationship MIGHT have some legal consequence -- intent (or not) to make a gift of an interest might be affected by your former relationship, e.g. whether you had children (hence, heirs) together, etc.

As a practical matter, you should probably interview local real-estate attorneys and find one that has experience with partition suits and who understands the concept of the purchase-money resulting trust. Your question doesn't say who provided the down payment; I've assumed you did.

You could ask the attorney to assist you in a decision to sue for partition and assert a more-than-50% interest in the suit.

The effect of such a suit would probably be to stimulate negotiation. Perhaps it should be filed AFTER you move out; I have no idea of the quality or safety of other aspects of your relationship with you ex and you must consider your safety and peace of mind.

You should also consider the net equity you have in the house. It may or may not be worthwhile to sue; possibly you should just walk away.

Re: Want to sell house, ex-husband is on grant deed, he wont let me.

A partition lawsuit will have to be filed. Please contact our office if you need assistance. 714 363 0220

Re: Want to sell house, ex-husband is on grant deed, he wont let me.

If he is as much and idiot as you picture him there are numbers of things you can do. Don't cry over spilt milk. Threatened to sue him. A partition sue would require him to buy you out or allow a sale of the property. He's going to benefit. Do not under any circumstances allow it to going to foreclosure. That only with your credit suffer but there are substantial adverse tax effects. Get to a real property attorney immediately. Protect yourself and don't let his abstinence ruin the rest of your life. 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.