Legal Question in Real Estate Law in California

First, the correct legal terminology is "on title" rather than "on the deed" to describe co-ownership. As co-owners, the title will probably show the three of you as tenants in common, or maybe as joint tenants, with you and your husband possibly owning your share(s) as community property.

In legal theory, all co-owners of a property have the shared right to possess and occupy the entire property at all times, unless they have voluntarily modified that right by contract. This means, in theory, that the three of you are effectively involuntary roommates, and that you can move back in any time, even if mom has leased the home to a stranger.

In practice, the law puts the brakes on a co-owner's exercising the right of shared possession in order to avoid the turmoil that would result. When one co-owner effectively kicks out the other co-owners by taking full possession and limiting or denying the sharing of possession, this is called an "ouster," and the law expects the ousted co-owners to go to court to get their rights restored, rather than resorting to self-help. Civil Code section 843 discusses ouster and its remedies; you might want to look it up.

I think you are going to face two potential problems in January, 2012 (or before). The first is whether possession of the home is available -- maybe mom will have it leased out. The second, obviously related, problem is whether mom is going to make (co-) possession available to the two of you. Although you had an understanding to that effect, if it is an oral understanding it may not be enforceable. That brings you back to relying upon your rights of shared possession as co-owners.

The making of mortgage payments by mom does not have any effect on your right of shared possession and use. She probably has a right to reimbursement for contributions in excess of her ownership-percentage share upon any sale of the property.

The ultimate remedy for an unhappy co-owner of property is to force its physical division or, as happens more often in modern times, its sale and division of the net proceeds. Any co-owner can ask a court to order such a "partition" by filing a special kind of lawsuit asking for the same. Often, the mere filing of a partition suit causes a reluctant co-owner to restore the rights of the others, or to agree to buy out, be bought out, or cooperate in a private sale to a third party.

I hope this is somewhat helpful; if you need more information, explanation, or can supply more information, please feel free to contact me directly, with no obligation.

A tenant in common who pays taxes or other liens against the property has a right of contribution, and has an eqitable lien on the shares of the cotenants for their proportional amount of such expenditures.