Legal Question in Real Estate Law in California

Selling joint tenancy property

Divorced 9 years. I have physical custody of property (single residence)that is deeded as joint tenancy-right to survivorship between me and my ex wife. Property was purchased while we were married. I still live in it with my kids which I also have custody of. I would like to sell this property in order to buy and move to another home. She refuses to sell. In the property settelment (court) she accepted and signed the prepared paperwork declaring that upon the sell of the property she would recive and accept 50% of the equity, but only up to a maximum of $15,000 to her. Any other equity above that amount would go to me including the 50% I already have coming. (hey she signed the thing). Of course now the equity is around $175,000 and she refuses to allow me to sell stating that she will wait untill I die (me 50 yo, her 43 yo) then take over the property and she will sell it. Anything I can do to force the sell and leave the property settlement as is. I dont want to buy here out or offer her more of the equity, even though I may consider it, but she says no to that also. For 9 years I have made all the payments, ins tax etc on the property. The house payment per month is more than she even makes per month.

Many Thanks

Asked on 11/01/05, 9:39 am

7 Answers from Attorneys

Daniel Harrison Berger Harrison, APC
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Re: Selling joint tenancy property

She doesn't have a choice. You can force the sale of the property by a lawsuit for partition, in which case she may responsible for a portion of your attorney's fees.

As long as the property is in joint tenancy, she will obtain 100% ownership of the property if you die before she does. You should sever the joint tenancy by deeding the property to yourself as tenants in common (which will not require her cooperation or signature). By converting the property to tenants in common, upon your death your 50% ownership will go to your heirs (your children, unless you have an estate plan that directs the property elsewhere).

I would be interested in reviewing the settlement papers and assisting you further as to how to provide for the allocation of sales proceeds upon the sale of the property. My advice above assumes that the settlement papers are silent as to the process for selling the property.

Give us a call or email anytime.

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11/04/05, 7:41 pm
Carl Starrett Law Offices of Carl H. Starrett II
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Re: Selling joint tenancy property

There are two things you can do. First, you can sever the joint tenancy now so that she won't inherit your half if something were to happen to you. Second, you need to see a family law attorney.

You have a couple of options. One option would be to finance the $15,000 and then bring a motion to enforce the order by compelling her to deed you her interest in the property in exchange for the $15,000. The other option is to wait untiil you are ready to sell the property and bring the motion at that time.

When someone refuses to sign documents to effect the settlement of a divorce case, the court can appoint an "elisor' to sign on your ex's behalf. I believe the court has the discretion to attorney fees to you if you prevail.

But this is definitely a family law issue and you need to see a family law attorney for full advice.

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11/01/05, 9:51 am
Joel Selik www.SelikLaw.com
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Re: Selling joint tenancy property

You can destroy the joint tenancy by deeding it from yourself in jt to yourself as tenant in common; you do not need her permission to do this. (This assumes that the divorce order does not prevent this). You can then file a lawsuit allowing sale (partition), or you can go into family court. In any event the Family Court Order has to be carefully considered.

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11/01/05, 10:13 am
Christopher M. Brainard, Esq. Law Offices of C. M. Brainard - (310) 266-4115
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Re: Selling joint tenancy property

You should be able to enforce the agreement, but I would need to see it and consider how long it has been since you both signed into it as well as any other factors. You can give me a call.

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11/01/05, 11:27 am
Donald Holben Donald R. Holben & Associates, APC
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Re: Selling joint tenancy property

Would need to see your marital settlement agreement and court orders to answer.

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11/01/05, 11:44 am
Ken Koenen Koenen & Tokunaga, P.C.
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Re: Selling joint tenancy property

Unless it states otherwise in the divorce settlement, you can convert the property to tenants in common by granting your interest in the property back to yourself. That will destroy the joint tenancy.

Next, you can petition the court for partition, forcing the sale of the property.

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11/01/05, 12:29 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law
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Re: Selling joint tenancy property

I've read the question and the four prior responses. I agree that you should be seeking advice, first at least, from a family law attorney. Here are a couple additional thoughts.

One reason it's important to look at your judgment of dissolution of marriage is to confirm that the property settlement agreement was merged into or otherwise became part of the judgment. If so, you have a relatively easy legal task ahead, i.e. to seek an order or orders enforcing the judgment.

In this respect, please note that judgments are valid for ten years. In many cases, they can be renewed, but be sure to take some action before ten years elapse if you intend to proceeds based upon enforcement of judgment.

If you cannot proceed with this as an enforcement of judgment matter, you may be able to accomplish the same result through a suit for partition under Code of Civil Procedure section 872.010 et seq. This may take longer and be more expensive unless your ex-wife agreed to settle out-of-court rather than endure the cost of defending an action she's likely to lose.

I like the idea of severing the joint tenancy by deeding your half to yourself as tenant in common. See Civil Code section 683.2, noting that the deed must be notarized and recorded. As a matter of strategy, you may be better served by pointing out to your ex that you can do this, rather than actually doing it; that way, you may preserve some bargaining power.

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11/01/05, 1:35 pm

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