Legal Question in Real Estate Law in California

My sister and I just inherited our mothers home and I want to sell it and my sister said that she is going to live in it without paying me anything.

Asked on 3/24/11, 1:06 pm

3 Answers from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Either one of you could lawfully live in the house, and not owe the other rent. Or, both of you could live there, each with a lawful right to co-possess the entire house and its land. Co-owners are in effect "involuntary roommates" of each other. However, since the law doesn't approve of self-help or disturbances of the peace, if your sister moves in first, and doesn't voluntarily give you your co-possessory rights, you can't forcibly enter or anything like that; you have to follow the law and go to court. Not many people do that, because they wouldn't want to share the property after having sued to enforce the right!

Although one co-owner cannot charge the other rent, each is entitled to share in the net income from rents received from (non-owner) third parties. So, although your sister wouldn't have to pay you rent for herself, if she rented out a room, she would have to share the net income from that with you.

There is a remedy for unhappy co-owners who want to end the situation. A special kind of lawsuit, called a "partition" action, can be brought to compel a split of the property, or a sale of the property and a splitting of the net proceeds from the sale. Splitting a parcel into two is still done occasionally, but nowadays it is rarer than a century or two ago when most property disputes involved dividing the family farm. Houses on small city lots are partitioned by sale and division of the net proceeds.

One important aspect of a partition suit is that the mere bringing of the suit may cause the person wanting to keep the property to see the handwriting on the wall and agree to buy out the other, or to place the property on the market and settle out of court. Another aspect is that the net proceeds aren't necessarily divided strictly in proportion to ownership (which is often, but not always, 50-50). The court will hear evidence on whether one or the other has paid more than a fair share of property expenses, such as mortgage payments, property taxes, repairs and insurance, and can make adjustments in the interest of fairness and justice.

If you decide to tkae some kind of action on this developing problem, please feel free to contact me directly for some further free and private discussion. I have handled quite a few such cases in Northern California.

Read more
Answered on 3/24/11, 2:08 pm
Daniel Bakondi The Law Office of Daniel Bakondi

You have to resolve it legally. If not, within 5 years she may own the house entirely. Maybe sooner if this dispute started sooner.


Daniel Bakondi, Esq.

[email protected]


The Law Office of Daniel Bakondi, APLC

870 Market Street, Suite 1161

San Francisco CA 94102

IMPORTANT NOTICE: This communication may contain confidential information, privileged information, or attorney work product. If you are not the intended recipient or received this message in error, any use or distribution of this message is strictly prohibited and unlawful. Please notify the sender immediately, and delete this message. No attorney-client nor confidential relationship is created through this communication. Nothing communicated or provided constitutes legal advice nor a legal opinion unless it so specifies and written agreement for attorney services has been entered into. Attorney licensed in California only. Your issue may be time sensitive and may result in loss of rights if you do not act in time. Thank you.

Read more
Answered on 3/24/11, 2:36 pm
Anthony Roach Law Office of Anthony A. Roach

I disagre with Mr. Bakondi. I'm not sure how you took title through probate, but you and your sister are either joint tenants or tenants in common. Mr. Bakondi refers to the doctrine of adverse possession without mentioning it by name.

In order for a tenant in common to show adverse possession, they have to show more than just possession, they have to prove ouster. "It is a fundamental rule that each tenant in common has a right to occupy the whole of the property. The possession of one is deemed the possession of all; each may assume that another in exclusive possession is possessing for all and not adversely to the others; and consequently one tenant in common does not, merely by exclusive possession, gain title by adverse possession against the others. Such possession will be presumed to be by permission and rightful, unless notice is brought home to the others that it has become hostile." (Johns v. Scobie (1939) 12 Cal.2d 618, 623.)

An ouster, in the law of tenancy in common, is the wrongful dispossession or exclusion by one tenant of his cotenant or cotenants from the common property of which they are entitled to possession. "The exclusive occupancy by a cotenant is deemed permissive; it does not become adverse until the tenant out of possession has had either actual or constructive notice that the possession of the cotenant is hostile to him." (West v. Evans (1946) 29 Cal.2d 414.)

All you have provided is your desire to get rent from your sister, which as Mr. Whipple points out, you are not entitled to if she occupies the property herself. You have not shown any evidence of ouster, which would trigger the statute running on an adverse possession claim by your sister.

Read more
Answered on 3/24/11, 7:28 pm

Related Questions & Answers

More Real Estate and Real Property questions and answers in California