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Selling property when co-owner is uncooperative
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Dear Mr. Duman:
About five years ago, my girlfriend and I bought a home together as
"tenants in common". Last year, we separated. We found a tenant
for the house, but the rent does not pay the costs.
My girlfriend has stopped making her share of the loan payments.
I want to sell the property, but she refuses to cooperate in any way, and
she will not sign any documents to list the home with a real estate broker.
I have paid the property taxes and other expenses myself, but I cannot
afford to continue to do so. How can I sell the property if she won't
cooperate?
O.M., San Ramon
In order to sell the property without your co-owner's cooperation, a
"partition" law suit may be your ultimate recourse. The law and procedures
governing partition actions are set forth under California Code of Civil
Procedure, Section 872.010 et. seq., and applies to both personal and real
property.
Unless there has been a contractual waiver of the right to partition,
a partition action can be instituted by any co-owner of a present, or "remainder"
interest in the property to force a physical division or a sale of the
property.
The proper court to institute the suit is in the Superior Court of
the county in which the land is located. In a partition action, the
court will determine what the respective existing interests in the property
are, including any liens affecting the property, as well as the priority
and amount of such interest. In some cases, the court may appoint
a referee to oversee the division of the property, including the decision
as to which method of division should be used.
With a single family home on a typical size lot, it would be impossible
to physically divide a lot, so the court most likely would order the sale
of the property in a partition action. As part of the partition action,
the court will also determine amounts, which may be due between co-owners
with regard to the property (such as the cost of necessary improvements
and maintenance of the property, reimbursement for a co-owner's payment
of loan payments, etc).
Court costs and attorney's fees are also a recoverable element of a
suit in partition, although the court normally apportions these costs and
fees between the co-owners, according to their respective ownership interests.
The subject of partition actions is complex, and it is important that you promptly consult with your attorney, to ensure that you proceed in a manner so as to fully protect your interests in your property.
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