Legal Question in Real Estate Law in California

A deed from one joint tenant to a third person will sever a joint tenancy. That creates a tenancy in common with the A,B, and D.

In a tenancy in common, if the percentage of interests are not set forth in the instrument of acquisition, or otherwise show of record, there is a presumption that the interests of the tenants in common is equal. That presumption can be rebutted, however, by evidence showing that the tenants in common made unequal contribution to the purchase price.

Its not clear what you mean by contributions. What I mean to say, is it is not clear whether you mean contributions towards the purchase price, or repairs and maintenance. A right of contribution exists in favor a tenant who pays taxes or other liens against the entire property, or repairs. If improvements were made, however, the tenant cannot claim a lien for contribution unless the other tenants consented to the improvements.

I suggest speaking to an attorney at length, and providing more detail to what it is you are seeking.

Mr. Roach is usually precisely right, but I'm not sure here. It seems to me that if there is a joint tenancy among three people, A, B. and C, that if C does something that severs himself and makes him a tenant in common with A and B, that A and B continue to be joint tenants with respect to each other.

Your facts present a very interesting case, where the correct outcome will probably require employment of some equitable principles that don't arise every day and are not well understood by many lawyers, even real-estate specialists. The purchase of real estate wherein one or more legal (recorded) interests differ from contributions to purchase money often gives rise to one or more so-called "purchase-money resulting trusts," wherein the guy that received a share of title in excess of what his purchase money contribution would suggest he should have received can be held to hold the excess, sometimes 100%, in trust for the over-contributor. These situations arise when the excess contrbution is not a gift, and the disparity in interests is the result of a mistake, foul play of some kind, unusual circumstances, or a deal that went sour.

A partition suit is probably appropriate, but one or more of the parties may wish to assert an equitable right to a larger share of the pie via including a quiet-title claim or cross-complaint asserting a resulting trust in his or her favor.

The analysis and proper outcome here will depend upon several factors not discussed, or insufficiently discussed, in your given facts. One wonders, first of all, whether there is enough equity in the property to warrant partition. What is the debt/equity picture? Also, the relationships between all the parties will be important in deciding whether there is a gift presumption, whether it is rebuttable, whether D is a bona-fide purchaser (probably not, since you say D got a gift), and whether anyone has committed a fraud. Who is in possession and who has collected income from rents may also play a role.

Basically, a proper outcome might be that A and B would share the net proceeds of a partition sale in proportion to their contributions to the down payment, and A, B, C and perhaps D would receive adjustments to their shares, up or down, to reimburse any excess-of-base-percentage contributions to necessary expenses such as interest, taxes, insurance, and certain maintenance outlays.

I would be delighted to take a (free) close look at the overall facts and give you further advice if yo contact me directly, www.bizlaw.ws or 707 878 2230.

I am a former V.P. and Associate General Counsel to the parent company of Fidelity National Title, Chicago Title and a slew of other real estate and title services companies. I can tell you Mr. Roach is correct on this one and Mr. Whipple is not. Under California law, severance of a joint tenancy destroys it entirely. A, B, and D are tenants in common. Other than that, however, the distribution of the proceeds in a partition action will depend on an accounting of the contributions, distributions and uses of the property over the life of the joint ownership. There is no way to analyze it in this kind of forum. If you would like furthe assistance, please feel free to contact me directly at my Walnut Creek office.