I own a property jointly with my two brothers. It was an inheritance from our mother. Title is in all three names.
One brother is living in the house and has refused access to both my other brother and me. He is separated from his wife who lives in one of his two other houses. His other house is rental property.
He is not paying rent and refuses to sell or vacate even though we have offered to sell him our shares. I have been paying the property tax. I am concerned that he has not been keeping up the property.
What do I need to do to file for partition? If the propert is in poor condidtion can we take the cost of repair from his share of the sale? Do we have to sue him to remedy?
I live in NC but my brothers both reside in LA County.
4 Answers from Attorneys
Is the property in California? If so engage counsel here to make appropriate demands on your behalf in a written communication, and if that is not successful, file an action for partition. The items you describe will be stated as a claim in the proceeding.This gratuitous response does not create an attorney client relationship. The advice provided herein is generic, may not apply to your circumstances and is not to be relied upon in your actions. An attorney client relationship is created only upon execution of an engagement letter hiring me or my firm.
A partition by sale is a lawsuit, and it would have to be filed in the county where the property is located.
A partition requires filing a lawsuit, but such suits are somewhat different from ordinary suits for breach of contract, torts, etc. The California process is spelled out in our Code of Civil Procedure, which you can find on line, as Sections 872.010 through 874.240, about 20 pages of fine print.
Many, probably most, partition suits that are filed are settled well before the court action is concluded. There are few defenses, and most previously recalcitrant co-owners see the handwriting on the wall when the summons and complaint are served, and become much more willing to negotiate for an out-of-court settlement. Such settlements are sometimes an agreement to go ahead with a conventional sale through a real-estate company, sometimes it's a buy-out agreement among the co-owners. Sometimes when there are side issues such as unequal payments of costs that should have been shared, or failure to maintain by a co-owner in possession, the parties add an arbitration of these side issues to their settlement agreement.
When a partition case does go all the way through court, the end result 90+% of the time is a court order requiring sale, followed by other court orders dealing with the fair distribution of the net proceeds of sale. If one (former) co-owner had contributed more than his/her fair share to costs of mortgage payments, property taxes, insurance or necessary repairs, the court will take this into consideration. The court can also balance out net proceeds from rentals to non-owners. However, when one co-owner has been the sole occupant, the others aren't entitled to "rent" since each co-owner has the right to occupy 100% of the property along with each other co-owner.
Although a co-owner out of possession has a theoretical right to co-possession, he or she is not entitled to "enforce" this right by just busting in. It would be necessary to follow the provisions of Civil Code section 843 regarding cure of an "ouster." The law places avoidance of civil disturbances ahead of exercising a right of co-possession. But, indeed, every co-owner has an inherent right to full co-possession at all times unless and only to the extent that they may have modified their rights by contract.
I'd be very willing to take on this matter at very reasonable rates.....I have a mini-specialization in partition cases, and although I'm a considerable distance from L.A., I do go there on business and I would not have to bill you for travel time or expense. Please contact me directly in interested.
You need to speak with an attorney who handles these matters. There are a variety of factors that go into this type of decision. feel free to call my office at 818 345-0123
Related Questions & Answers
What does homestead do for homeowners? primary homes Asked 7/03/13, 10:32 am in United States California Real Estate and Real Property