A partition is often necessary because joint property ownership can swiftly transform from harmonious cohabitation to contentious disputes. Whether it’s the dissolution of a romantic partnership, irreconcilable differences in investment strategies, or disagreements over property usage, many co-owners find themselves looking for ways to end their co-ownership of real property. In such scenarios, where one party seeks to sever ties, but encounters resistance from the other, retaining a partition attorney can ensure a prompt and fair end to the co-ownership.
Co-owner Refuses to Pay You a Fair Buyout
A partition action serves as a solution when co-ownership dynamics become strained. Oftentimes, one co-owner will request a buyout. However, the other co-owner will be unwilling to offer a fair buyout to exit the arrangement. For instance, consider two individuals jointly purchasing a one-million-dollar property, each contributing $500,000. In various scenarios, such as former partners separating or one co-owner neglecting taxes, the co-owner will seek equitable compensation for a buyout. When this does not work, they may find recourse through filing a partition action.
Co-Owner Refuses to Move Out
It is common for co-owners who break up to no longer want to reside in the same property as one another. Unfortunately, this frequently leads to the dilemma where a co-owner refuses to sign a deed transferring the property, vacate the premises, or contribute to costs like mortgage and utilities. This obstructionist behavior prolongs the process of ending a co-ownership and puts you at risk of foreclosure if mortgage payments are neglected.
Partition Actions can be Summarily Granted
In California, “if the party seeking partition is shown to be a tenant in common, and as such entitled to the possession of the land sought to be partitioned, the right is absolute.”[1]Bacon v. Wahrhaftig (1950) 97 Cal.App. 2d 599, 603.
Thus, even if your co-owner refuses to move out, a partition action allows court intervention. When a co-owner files a partition action, a neutral partition referee will be appointed to market, sell, and equitably distribute the proceeds of the property among the co-owners. If your co-owner resists the partition referee, the courts have ways to handle this issue. The court may grant the partition referee the right to request a writ of possession, which “states the court’s order to the sheriff to take and hold property that the plaintiff claims is theirs but that the defendant is wrongly keeping.”
Co-Owner Refuses to Pay Reimbursements for Your Contribution to the Property
If you have contributed to the property’s mortgage or necessary repairs before filing for partition, you can recover those expenses during the final accounting stage of a partition. As explained by one court in California, “[e]very 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.”[2]Wallace v. Daley (1990) 220 Cal.App. 3d 1028, 1035–36 (citing California Code of Civil Procedure § 872.140)
Co-Owner Allows Someone Else to Live in Property Without Your Permission
A fundamental rule of co-ownership in California is that: “One of the essential unities of a joint tenancy is that of possession. Each tenant owns an equal interest in all of the fee, and each has an equal right to possession of the whole. Possession by one is possession by all. Ordinarily, one joint tenant out of possession cannot recover exclusive possession of the joint property from his cotenant. He can only recover the right to be let into joint possession of the property with his cotenant. He cannot eject his cotenant in possession.”[3]Swartzbaugh v. Sampson (1936) 11 Cal.App. 2d 451, 454–55. “Each cotenant may lease or license his or her right to occupy and use the common property to a third person to the same extent that it could be occupied and used by the lessor cotenant.”[4]Miller & Starr, Right to lease or license to a third person, 4 Cal. Real Est. (4th ed.) § 11:3 (citing Atlantic Oil Co. v. Los Angeles County (1968) 69 Cal. 2d 585, 602).
The law articulates that co-owners have a right to occupy the property, which means the right to allow any person to move into the jointly owned home without the permission of other co-owners. If you have a co-owner who has allowed undesirable occupants to stay at the property, you can gain control of your property by filing a partition action.
Different Levels of Assertiveness When Considering a Partition Action
It is common for co-owners to reluctantly consider a partition action when their co-owner refuses to cooperate or communicate about disagreements. While there is no requirement under the law to make a demand on your co-owner before filing a partition action, the following steps show how a co-owner can increase the level of assertiveness depending on how a co-owner responds to attempts to end the co-ownership dispute.
- The first step is to have a direct conversation with a co-owner. Open communication enables co-owners to voice their concerns and negotiate an end to the co-ownership.
- If open communication fails to yield the desired solution, draft a letter that warns of a partition action in a formal tone to signal to your co-owner the seriousness of the dispute.
- If your co-owner does not respond to your letter, retain a real estate attorney specializing in partition actions to send a letter directly to the opposing co-owner. This will unequivocally demonstrate to a co-owner that the dispute is getting serious if unresolved.
- For co-owners who are not ready to file a partition action, but wish to show their co-owner that they are serious, an attorney can send a demand letter with an attached draft partition complaint. An attorney may accompany the complaint and cover letter with a proposed settlement agreement.
- If your co-owner refuses to resolve the dispute without court intervention, your only option is to protect your ownership interests by filing a partition complaint. Once the complaint is filed, it is best to include a letter to the co-owner when serving the filed partition complaint and summons.
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 eight full-time partition lawyers, Talkov Law is the #1 partition law firm in California and has handled over 400 partition actions throughout California. If you are seeking tailored advice and representation, contact Talkov Law, California’s premier partition action law firm, for a free consultation, call (844) 4-TALKOV (825568) or reach out online today.
References
| ↑1 | Bacon v. Wahrhaftig (1950) 97 Cal.App. 2d 599, 603. |
|---|---|
| ↑2 | Wallace v. Daley (1990) 220 Cal.App. 3d 1028, 1035–36 (citing California Code of Civil Procedure § 872.140) |
| ↑3 | Swartzbaugh v. Sampson (1936) 11 Cal.App. 2d 451, 454–55. |
| ↑4 | Miller & Starr, Right to lease or license to a third person, 4 Cal. Real Est. (4th ed.) § 11:3 (citing Atlantic Oil Co. v. Los Angeles County (1968) 69 Cal. 2d 585, 602). |
