Legal Question in Real Estate Law in Delaware

Re: Joint tenent wants out

No.

Re: Joint tenent wants out

I will assist you in your goals, success will be determined upon the facts which include consideration of many factors. I will counsel you on the most prudent course of action. Call me directly at (619) 222-3504.

Re: Joint tenent wants out

My firm just enrolled in program, if you still need a DELAWARE real estate on issue, please contact us. Ed Pankowski

Re: Joint tenent wants out

You may be able to recover some of the equity if a partition action is filed. In some cases, you would receive the value of the equity less advancement to principal. Please contact us if you need any assistance in negotiating a settlement or litigating. We would have to review your documentation.

Re: Joint tenent wants out

If you are BOTH on title and BOTH on the loan, the presumption is that you both are entitled to equal ownership and control of the property--the lender does not examine the source of the payments they receive and frankly could care less where they came from; the only ones who know whose money was used to make the payment are the two of you. If the house were to be sold, both of you would be entitled to a 50% share in the proceeds; the only way to alter that, would be if the two of you agreed to some other apportionment, OR if your "friend" filed a lawsuit to have a judge determine what percentage each of you is entitled to receive (suit for partition and accounting), and at trial he is able to show he made all the payments--even then, you would be entitled to something, as use of your credit to obtain the loan was a significant contribution.

Re: Joint tenent wants out

I can't answer for Delaware law, which may be different, but if the situation arose in California, and it often does, the legal principles to be looked at would include partition by sale, reimbursement and restitution, contract and perhaps purchase-money resulting trust.

The basic concept is that when two people, not married to each other, co-own property, either of them has a fundamental right to require the sale of the property and the equitable division of the net proceeds. This right can be waived.

Fair division of the net proceeds would require court, or a court-appointed referee, to look at items such as mortgage payments made, credit extended, taxes paid, repairs, rents received, fair value of exclusive occupancy, and the like. The latter kicks in usually only after one co-owner has 'ousted' the other, however, since both co-owners have the right to occupy the property without payment of rent.

The court would look to see if there were a contract -- written, oral or implied -- between the parties which might modify the otherwise application of the law.

Finally, the court might consider who made the down payment. When X pays a larger share, or all, of the down payment than Y pays, in comparison to the percentage legal or "title" ownership X and Y receive, it may be held that X holds the excess share of title as a trustee for Y and must convey that portion to Y upon demand.

The bottom-line result will probably be fair to both parties, but that doesn't mean either or both parties will be happy with the result.

Further, legal action such as partition can be slow and expensive. It is better to have a lawyer with experience in partition and reimbursement mediate for you. If suit is necessary, hope for an out-of-court settlement before trial, court-ordered sale and final distribution.