Legal Question in Real Estate Law in California

Re: Tenant in Common

Any cotenant has the right to force a partition by suit, but there are a few defenses that can be raised by one or more of the other cotenants which could effectively block the attempt by causing the judge to find that the right of partition had been waived.

Often, the waiver of the right to partition will consist of a clause in a written agreement, expressly waiving the right. However, the waiver doesn't have to be express. If the cotenants have given each other, or someone, a right of first refusal or an option, that may very well operate as a waiver. Other contract provisions that are inconsistent with partition may also operate as a waiver, such as a joint development plan.

The cases I've looked at on the subject of waiver usually don't deprive the aggrieved cotenant of a remedy. For example, if there is a right of first refusal, but the party claiming waiver based on that right doesn't or can't exercise that right (for example, because he doesn't have the money), the court may just go ahead and approve the partition.

In the end, the court will usually try to achieve a break-up of the co-ownership either by prodding the co-owners to carry out their plan of buy-ot, first refusal, co-development or whatever, and if that doesn't work, will grant the partition request.

An attorney could give you a better prediction as to the outcome in your situation upon reviewing the parties' agreements, including questioning you about any tacit understandings, motivations for getting into the co-ownership in the first place, and the parties' ability to carry out the objectives.

Re: Tenant in Common

You can still bring the partition action alleging your concerns that the property is not selling as anticipated or agreed. Most partition actions end up with the parties agreeing on selling or buying out the property at market value. It will definitely act as leverage to get the property sold in your situation. Be advised, however, that if the property does sell through a court order, it will usually sell way below market value as a time limit is usually placed on how long the property will be open for sale. This could be good for you if you are the one buying the property, but bad for you if you are not buying it.