Your Rights as a 50% Property Owner
Many people in California own property with another person, whether this is by choice (such as purchasing a home with a partner) or not (such as inheriting a home with a sibling). The most common form of co-ownership is 50/50 ownership, which generally arises from a deed granting the property to two people with no indication of the ownership percentages. As explained below, 50% owners in California real estate have the right to force the sale through a partition action, to occupy the entire property, and to collect 50% of the net rental proceeds, among many other rights.
Forcing the Sale of the Property as a 50% Co-Owner
Real estate investment remains one of the most lucrative opportunities available, especially in California, a state known for its high demand and equally high property prices. In many cases, individuals choose to share the costs of property ownership with investors, family members, or friends, collectively becoming co-owners of the property. Additionally, inherited properties are often transferred to multiple owners.
While various forms of co-ownership can be successful, disagreements and disputes among co-owners are not uncommon. What happens when joint property owners clash over its use or sale? How can you deal with a situation where one co-owner is in possession of the property while others are footing the bills or simply want to sell? What if one co-owner denies access to another?
These common disputes among property co-owners can be resolved through a partition action in California.
Can I Force the Sale if I Only Own 50%? Do I Need the Consent of All Co-Owners to Sell?
One of the biggest myths in co-ownership is that the consent of all co-owners is required to sell the property. The truth is that a skilled partition lawyer in California can put a prompt end to co-ownership on behalf of a co-owner regardless of their fractional ownership. There is no requirement that co-owners agree on the sale, nor any rule that majority controls. If there was, there would be no need for partition law to exist. Co-ownership is not a lifetime commitment, despite what some co-owners might want you to believe.
Right to Occupy the Entire Property as a 50% Co-Owner
Perhaps the co-owner in possession claims that they are entitled to full possession of the property. Perhal a co-owner assets that they can exclude the other co-owner(s) by claiming that they have lost their rights to the property by moving out, which is another myth among many co-owners.
The law is that: “Each tenant in common equally is entitled to share in the possession of the entire property and neither may exclude the other from any part of it.” Zaslow v. Kroenert (1946) 29 Cal. 2d 541, 548 Another court explained that: “[T]he cotenants hold the common land by unity of possession, for which reason there can be no specific or determinate portion of the common land which any one of such tenants can claim as his in severalty.”Wood v. Henley (1928) 88 Cal.App. 441, 452
This means that one co-owner cannot exclude other co-owners from parts of the property, and that alleged informal agreements whereby one co-owner occupies one part of the property while another occupies another may not constitute a defense.
If a Co-Owner Excludes a 50% Co-Owner, They Have Committed an Ouster
If your 50% co-owner tried to exclude you from part of the property, they may be liable for the damages arising from an ouster under California law.
“An ouster, in the law of tenancy in common, is the wrongful dispossession or exclusion by one tenant of his cotenant or cotenants from the common property of which they are entitled to possession.”Zaslow v. Kroenert (1946) 29 Cal. 2d 541, 548; accord Hacienda Ranch Homes, Inc. v. Superior Ct. (2011) 198 Cal.App. 4th 1122, 1128, as modified on denial of reh’g (Sept. 28, 2011) … Continue reading
“Ouster” is shorthand for a “cotenant’s unambiguous conduct that manifest[s] an intent to exclude another cotenant from gaining or sharing possession of jointly owned property”Estate of Hughes (1992) 5 Cal.App. 4th 1607, or that “bring[s] home or impart[s] notice to the tenant out of possession, by acts of ownership of the most open, notorious, and unequivocal character, that [she] intends to oust the latter of his interest in the common property.”Preciado v. Wilde (2006) 139 Cal.App.4th 321, 322, 325; Johns v. Scobie (1939) 12 Cal.2d 618, 623–624 Ouster may be effected through “a diversity of methods”Carpentier v. Webster (1865) 27 Cal. 524, 561–563, ranging from invoking the statutory notice procedure for ousterCalifornia Civil Code § 843 to “claiming the whole for himself, denying the title of his companion, or refusing to permit him to enter.”Hacienda Ranch Homes, Inc. v. Superior Court (2011) 198 Cal.App.4th 1122, 1128 (quoting Zaslow v. Kroenert (1946) 29 Cal.2d 541, 548 A partition lawyer will be able to help you assess your right to claim damages for ouster.
50% Co-Owners Have the Right to 50% of the Net Rent Collected at the Property
Many times, one of two 50% owners will be in charge of collecting the rent and paying the expenses. However, sometimes, the co-owner who acts as the manager of the property fails to pay 50% of the net rent (meaning gross rent minus expenses) to the other co-owner.
California Code of Civil Procedure 872.140 states that: “The court may, in all cases, order allowance, accounting, contribution, or other compensatory adjustment among the parties according to the principles of equity.” This law allows a co-owner to collect back rent.
Can a 50% Co-Owner Collect Rental Value When the Other Co-Owner is in Sole Possession?
The law gets murky around a common issue whereby one co-owner lives at the property, while the other co-owner does not.
However, with only a few exceptions, such as ouster, “a cotenant out of possession has no right to recover the rental value of the property from a cotenant in possession.” Estate of Hughes v. Ben G. Patton, (1992) 5 Cal.App.4th 1607, 1611.
Another exception is the case of Hunter v. Schultz, which found that: “While we are in accord with defendant as to the settled rule that, in the absence of agreement between them, one tenant cannot maintain an action against his cotenant in exclusive possession to recover rent for the latter’s occupancy of the property . . . The later cases amply show that when, in a suit for partition or a sale for division, or other proceeding between cotenants in equity or in which equitable powers may be exerted, a cotenant who has been in possession or use of the premises seeks to obtain contribution respecting improvements made, or amounts expended in protection or preservation of the property, the court, as incidental to the granting of such relief and by way of adjusting the rights of the parties, may charge the claimant, defensively, with at least a part of the reasonable value of his occupancy or use, and in some cases may hold him accountable for profits realized from the premises, even though he could not otherwise be required to account or be held liable respecting any of such benefits.” Hunter v. Schultz (1966) 240 Cal.App. 2d 24, 30–31; accord In re Fazzio, 180 B.R. 263, 269 (Bankr. E.D. Cal. 1995) (quoting Hunter v. Schultz (1966) 240 Cal.App. 2d 24, 30–31).
Since co-owners out of possession generally have an uphill fight claiming rental value, it is usually best to bring about a prompt end to the co-ownership relationship when both parties no longer seek to jointly occupy the property.
When do I need a partition action?
In California, most people consider initiating a partition action when there is a disagreement between joint owners of a property or a co-owner is looking to end a co-ownership arrangement. These disagreements may involve one owner requesting to sell their interest in a property, but the other shared owners are unwilling to sell or can’t agree on a fair price. A conflict on diverging interest may also occur where joint owners disagree on the best use of the property. If you have co-ownership of a property and your desire to use or sell the property conflicts with the other party, you may be entitled to a partition action. A partition action is the only way to solve co-ownership disputes for good.
It is very easy for joint ownership of real estate cause issues when co-owners simply have conflicting interests. Thus, a partition action is a tool to help you end a troubling relationship. If you have tried to negotiate with your co-owners, but they still refuse to compromise with your interests, then you should seek a partition action. A partition action can be filed by any co-owner in property with joint ownership, no matter how large or small the interest of co-owner. Any property, including commercial property, residential property, vacant land, and even personal property that has multiple owners can be subject of a partition action.
Keep in mind that all of this information likely does not apply to property a married couple owns as joint tenants. Spouses looking for information about how to sell jointly owned property in a divorce should seek the advice of a California divorce attorney.
What happens in a partition action?
In a partition action, a co-owner of a property is taking legal action to fairly divide the property among all co-owners of the property. This type of lawsuit usually ends in one of two ways: either the court orders a forced sale of the jointly owned property and then the sale proceeds are divided equally among each owner, known as partition by sale, or the court divides the property into pieces and gives each owner an undivided interest in their own separate piece, known as partition in kind. In some rare instances, the court may also award ownership to one person and order them to buy out the others. If this is agreed between the parties, this manner of partition is known as partition by appraisal.
Additionally, even after a lawsuit is filed, the co-owners can agree to sell the property either to each other or to a third party without court intervention and reach a settlement. This settlement agreement should be drafted by the counsel to ensure it is legally binding.
The terms related to a partition action as well as the partition process can be complex and time consuming. Therefore, many people who are seeking a partition action or have been served with one will often retain a real estate partition action attorney to help them navigate the legal process.
How much does a partition action cost? What is the cost for partition attorney fees?
In California, the cost of partition action with attorneys fees can vary depending on the complexity of the litigation involved. Based on dozens of partition lawsuits managed by the real estate attorneys at Talkov Law, the average cost of a partition action is usually between $8,000 and $12,000, with most coming in around $10,000. Costs can be higher if a co-owner decides to fight the partition action or if the case becomes more complex. In most cases, the cost of the attorney will be considerably smaller than the amount paid to the Realtor or real estate broker to sell the property. In certain cases that meet our criteria, Talkov Law may be able to take the case on a minimal retainer with the remaining attorney’s fees to be paid from escrow when the property is sold or refinanced. Contact us for more information.
Can you recover your attorney’s fees in a partition action?
The good news is that attorney’s fees may be recoverable in a partition action. California Code of Civil Procedure 874.040 states that “the court shall apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable,” meaning the court can force the other party to pay for some or all of the fees associated with bringing or defending against the partition action.
In a case where you have a lack of cooperation from a co-owner, attorney’s fees can also be recovered in a partition for a non-cooperative co-owner. We have recovered attorney’s fees against uncooperative co-owners through court judgments. Ultimately, it is imperative to have a skilled partition attorney in California to evaluate your situation and advise you on a plan of action to ensure you get the best outcome possible in your situation for the least amount of expenses.
Can you recover mortgage payments and improvements in a partition action?
The great news about a partition action is that parties can recover all of the mortgage payments, taxes, insurance, repairs, improvements and other expenditures made in excess of their ownership interest. The seminal case of Wallace v. Daley (1990) 220 Cal.App. 3d 1028 , 1036 explained as follows: “Every partition action includes a final accounting according to the principles of equity for both charges and credits upon each co-tenant’s interest. Credits include expenditures in excess of the co-tenant’s fractional share for necessary repairs, improvements that enhance the value of the property, taxes, payments of principal and interest on mortgages, and other liens, insurance for the common benefit, and protection and preservation of title.” It is important to organize all documents showing these offsets available in a partition action to develop an appropriate strategy when consulting with a partition lawyer in California.
How to win a partition action?
In a partition action, there is a lot at stake as real estate is often so expensive and is always unique. What it means to win a partition action might be different for each person. For some, they seek to force their sibling out of their family estate and obtain sole title. For others, they simply want to be paid fairly for their co-ownership interest in a property. Therefore, it is important to know what your goal is prior to initiating a partition lawsuit. Whether it may be seeking to divide the land or receiving proceeds from the sale of the property, ensuring that you know what you want will give you a better chance at winning.
Additionally, hiring a skilled and experienced partition attorney will influence the outcome of a partition action in your favor. A partition lawyer who has experience in real estate litigation will be extremely helpful in ensuring that your interests are protected and you achieve the desired outcome. A partition action lawyer will help litigate for you in court as well as helping you reach a settlement outside of the court. Therefore, making sure you have a highly knowledgeable partition attorney on your side will be critical in the outcome of your case.
How long does it take to win a partition action?
The length of time it takes to resolve a partition action depends on the circumstances and the complexity of each case. The length of time it takes to win a partition action is usually between three to nine months, depending on the level of complexity, whether court involvement is required, or otherwise. Of course, there are outliers. But, the chances are, it will be over in a reasonable period of time. The time needed to reach a resolution also depends on the efficiency and effectiveness of legal counsel. An experienced partition real estate lawyer can possibly help you settle your case sooner.
How to find the right partition attorney?
It is important to find the right attorney to represent you in a partition action. Indeed, co-owners in a partition action almost universally want the same thing: The best result in the least amount of time with the lowest attorney’s fees. To achieve these goals, look for the following signals that you’ve found the right partition attorney:
- Experience in partition actions will save you money and headaches by solving the dispute faster. Our dedicated partition attorneys have nearly two decades of experience in partition actions, allowing us to resolve your dispute quickly.
- Experience in real estate litigation will ensure that your attorney can solve all of the real estate related issues that arise in a partition sale including quiet title issues, escrow problems, subpoenas to banks, real estate accounting for damage calculations, and more.
- Reasonable fees are critical to your success. There are attorneys whose cases drag on for years and generate fees that benefit only the attorney. Our reviews make clear that we know how to resolve these disputes promptly.
- Success in settlement and negotiation. Many attorneys boast of their trial experience, even though about 98% of partitions are settled before a trial. This saves clients considerable amounts in attorney’s fees and ensures a resolution that is agreeable to them. Look for an attorney who can calculate the probable financial outcomes of the case to aid in a reasonable settlement.
- A winning strategy to end the dispute and win your partition action. During your consultation, be sure to ask the attorney how they plan to litigate the case. If their strategy is to file the complaint and just see what happens, run- don’t walk! Our attorneys implement an appropriate plan to solve the disputes in the case and determine the appropriate values for any offsets. This is why most of our partitions are over in a matter of a few months, not years.
- Satisfied client reviews reflecting a track record of success. With dozens upon dozens of satisfied client reviews on Google and elsewhere, all related to partition actions, our client-focused firm will hope to add you to our lengthy list of clients who found the right attorney.
Talkov Law's Partition Attorneys Can Help
If you want to end your co-ownership relationship, but your co-owner won’t agree, a partition action is your only option. With six, full time partition lawyers, Talkov Law is the #1 partition law firm in California and has handled 250 partition actions throughout California. Every case has resulted in a sale to either a third party or one of the co-owners. Not a single court has denied our clients the right to partition or declared our client to be a non-owner. Plus, for qualified cases, there is no fee until we settle or win your case!
|↑1||Zaslow v. Kroenert (1946) 29 Cal. 2d 541, 548|
|↑2||Wood v. Henley (1928) 88 Cal.App. 441, 452|
|↑3||Zaslow v. Kroenert (1946) 29 Cal. 2d 541, 548; accord Hacienda Ranch Homes, Inc. v. Superior Ct. (2011) 198 Cal.App. 4th 1122, 1128, as modified on denial of reh’g (Sept. 28, 2011) (quoting Estate of Hughes (1992) 5 Cal.App. 4th 1607)|
|↑4||Estate of Hughes (1992) 5 Cal.App. 4th 1607|
|↑5||Preciado v. Wilde (2006) 139 Cal.App.4th 321, 322, 325; Johns v. Scobie (1939) 12 Cal.2d 618, 623–624|
|↑6||Carpentier v. Webster (1865) 27 Cal. 524, 561–563|
|↑7||California Civil Code § 843|
|↑8||Hacienda Ranch Homes, Inc. v. Superior Court (2011) 198 Cal.App.4th 1122, 1128 (quoting Zaslow v. Kroenert (1946) 29 Cal.2d 541, 548|
|↑9||Estate of Hughes v. Ben G. Patton, (1992) 5 Cal.App.4th 1607, 1611.|
|↑10||Hunter v. Schultz (1966) 240 Cal.App. 2d 24, 30–31; accord In re Fazzio, 180 B.R. 263, 269 (Bankr. E.D. Cal. 1995) (quoting Hunter v. Schultz (1966) 240 Cal.App. 2d 24, 30–31).|