Legal Question in Real Estate Law in California

Re: Unmarried persons rights

You need to have a written agreement. One way to handle this might be joint tenancy but that has other problems.

Joel Selik

800-894-2889

Attorney/Real Estate Broker

www.sandiegorealestateattorney.com

Re: Unmarried persons rights

The best way to protect an interest in the house is for your boyfriend to place you on title to the house, which would provide you protection regardless of what may happen to your boyfriend. If your boyfriend left you an interest in a will, all he need do to negate that interest is to make a new will, so it is less protection than being deeded an interest in the house.

Re: Unmarried persons rights

One other thing that I would like to mention is that if he is not willing to put you on title, you should be very concerned. I am working on a similar case where a couple was together for 8 years, bought a house 5 years ago with both of their funds and most of the payments were made with his income, and they had a child together.

However, they never got married, and the house was in her name. They split up, and now he needs to fight for restitution.

Re: Unmarried persons rights

The situation you're in is rather common these days, and a lot of litigation results when the underlying relationship sours. Unlike married couples, you do not have the benefit of family law and the community property concept. The courts (post-Marvin v. Marvin) no longer regard your arrangement as sinful and therefore undeserving of legal protection, however. If a legal dispute over the house arose, your rights, if any, would be governed by the laws covering business deals between strangers, including contract law and the principles of 'unjust enrichment' and restitution.

Essentially, the house would be his if his were the only name 'on title' and he put up the down payment. You would be entitled to restitution of money you put in for payments of one kind or another, but, since it is his house, the amount of restitution to which you would be entitled would probably be reduced by the fair market rental value for the time while you were a 'roommate.'

A will isn't going to protect your interests. It can be changed at any time. It gives you no rights whatsoever; rather, merely what is called an 'expectation.' Presumably you are young folks.

What you need is a written and notarized agreement covering all the financial and property aspects of your relationship. If the deal includes you receiving an interest in the house, it should be clear whether your interest is a fixed or an ever-increasing percentage, whether you get a flat amount or share in the appreciation, etc. Then a deed or other instrument reflecting the contract, or possibly the contract itself, should be recorded.

It is generally believed that the best way for unrelated persons to co-own property is as tenants in common, rather than as joint tenants. With the former, there is no right of survivorship, i.e. each of you can bequeath your part interest to anyone. With joint tenancy, the surviving co-owner(s) get your share on your death, not your heirs. Also, with tenancy in common, you can have unequal interests, like 30%-70%, if appropriate. This is not possible with joint tenancies.

Right now, if your mortgage contributions and other 'investments' in the house exceed the fair rental value of your 1/2 of the house, you are in effect lending money to your boyfriend without benefit of promissory note or collateral, and it may turn out to be an unintended gift. If the amount involved is enough to be a concern, or if you want a share of the appreciation, work out a deal with your boyfriend, then get a lawyer to reduce it to writing and get it notarized and perhaps recorded.

Re: Unmarried persons rights

I suggest you either have your name added to the property and 1/2 tenant in common or have him put you in his will. The deed is better since he can always change his will.

Re: Unmarried persons rights

A will on his part could help, but he could change it at anytime. You could put the house into a trust, with you both being joint trustees. The other thing is for him to deed the property to you and him as either joint tenants or tenants in common.