Legal Question in Real Estate Law in California

No, it is not true. Each co-tenant is entitled to possession of real property they own. However, if one co-tenant voluntarily leaves and the other remains, as a practical matter, it is difficult, if not impossible, for the ousted co-tenant (you) to get back onto the property. If you truly own the property with your ex as joint tenants, you will have to sign any deed transferring the property to a new owner. In the absence of a voluntary sale, you will have to file a lawsuit for partition of the property. In a partition action a court will decide what your respective interests in the property are and will, in all likelihood, order the property sold. After deduction of the costs of sale, the proceeds will be divided in accordance with the parties' interests as determined by the court.

You have an equal right to possession of the property as does he. Why do you want to go back there if you found another place and since you did I assume you are no longer involved with him? However as a practical matter if he doesn't agree then you will have to enforce that right which you can do. By the way did you know in a joint tenancy when one tenant dies the other takes their share? Next time you do this make it a tenant in common then your share goes to your estate/heirs.

At this point who is paying the mortgage? If he was a roomie then you shouldn�t have to pay as much. Figure both occupants pay rent then deduct from mortgage payment and then split difference if any left to pay mortgage and other housing expenses such as taxes insurance upkeep or utilities. Oh by the way he needs your consent to rent it.

If he doesn�t pay toward the mortgage i.e. rent or fails to turn over roomie�s $$ then file an eviction lawsuit against the both of them. Plenty of lawyers will do that for a couple thousand dollars maybe even $1500. That may get his co operation and attention.,

However at the end of the day you still have to work with him if possible as you have house up for sale anyhow unless you want to spend a bunch of money and file a lawsuit for partition and court ordered sale.

Key here is due to your domestic former relations do not do anything that will cause a ruckus or either of you may end up in court with a domestic violence restraining order or worse.

Hope that helps and good luck to you.

Are you ready for a third opinion? I think Mr. Hoffman is generally correct, but his answer might need a little further explanation. I disagree with much of what Mr. Belli says, and I think your ex-boyfriend has a good point about your moving out.

Co-owners (also called cotenants) do indeed each have the right of possession of the entire co-owned property. However, there is a limitation on the right of a cotenant who is currently out of possession to come back into possession. The limitation is somewhat similar to the limitation on landlords regarding do-it-yourself evictions, and the underlying legal principle is that the right of possession should be enforced by court order after a court's determination of the parties' rights rather than self-help such as breaking in, changing the locks, force and threats, or any other kind of actions that could result in a breach of the peace.

Involuntary removal and/or exclusion of a cotenant out of possession by a cotenant in possession is called an "ouster," and the Civil Code (at section 843) sets forth one process for curing an ouster, just as the Code of Civil Procedure has a process (unlawful detainer) for obtaining an eviction of a tenant after the lease terminates. So, though both attorneys are correct in saying you have an equal right to possession, asserting that right must be done lawfully.

Next, I believe that there is nothing in the law to prevent your ex-boyfriend from taking in paying roommates, or from also moving out and renting to tenants. His right of possession includes the right to lease out that possessory interest. He probably isn't telling his roommate (or tenant) that you are also entitled to possession - i.e., that there is, in effect, another roommate lurking out there. He is, in effect, renting his nonexclusive rights, and that's not what most tenants want! Nevertheless, he can do it.

There is no right of a cotenant out of possession to demand rent (based on fair market value of a half interest, or on any other theory) from the cotenant in possession. That is because the tenant in possession already has the right to possess the entire property. So, you can't demand that your ex contribute to the mortgage on that theory. However, you ARE entitled to share in the net income from renting to third persons, such as the roommate.

Further, you can't evict your co-owner, and I think you'd have a hard time lawfully evicting any roommate or tenant in possession under a lease or rental agreement with your co-owner.

Extricating yourself from this mess with minimum cost and damage presents a real problem, although the fact that you refinanced in April 2009 suggests that the property may not be"under water" and the apparent ability to agree to list suggests at least the possibility of cooperation on a private (non-partition) selling process.

One final point is that, since you seem to be the financially stonger of the two, perhaps you made a disproportionate (more than 50%) contribution to the down payment. If so, there is an equitable theory called "purchase-money resulting trust" under which you may be able to assert a larger than 50% interest in the house.