Can a Tenant in Common Force a Sale?
Yes. Tenants in common (TIC), as co-owners of real property are entitled to try and force a sale of that property by filing a lawsuit called a partition. Like many other aspects of the law, however, this is easier said than done. Many issues can arise during a partition suit, so having the right attorneys by your side can make all the difference.
At Underwood Law Firm, our attorneys are well-versed in all forms of co-tenancy and partitions. The rights and duties that follow each of these ownership schemes are unique, making them a key issue in real estate litigation.
What is a Tenant in Common (TIC)?
In California, co-ownership of property comes in many forms. A tenancy in common (TIC) is simply one type in a list that also includes joint tenancy, ownership by partnerships, and community property. (Civ. Code § 686.)
In order to distinguish between these co-ownership formations, a tenancy in common can be best described as the “last on the list,” so the speak. And that’s because each of the other ownership schemes include things that make them particularly distinct. A joint tenancy has several distinct requirements, the most important of which is equality of ownership shares between all the co-owners. (Civ. Code § 683.) If two people own a house and one is even a 51% owner, they are not joint tenants.
Partnership ownership schemes are also unique because the property is owned either by the partners or the partnership as a separate entity. (Civ. Code § 684.) If there isn’t a partnership, then there is no partnership interest.
Lastly, co-owning property as community property requires a valid marriage. So if an unmarried couple decides to purchase a home, no matter how serious their relationship, their collective ownership does not invoke the rules of community property.
That leaves the tenancy in common. There is no requirement of marriage, or equal ownership, or separate business entities. Instead, the only requirement that the law reads into the creation of a tenancy in common is the “right of possession.” (Wilson v. S.L. Rey, Inc. (1993) 17 Cal.App.4th 234, 242.) That means that each cotenant must be allowed to physically possess the whole of the property, regardless of whether they are 1% owner, or a 99% owner.
How does a Tenant in Common (TIC) force a sale?
The simplest way to force a sale of jointly-owned property is for one of the co-owners to file a lawsuit for partition. A partition is the “procedure for segregating and terminating common interest in the same parcel of property.” (Summers v. Superior Court (2018) 24 Cal.App.5th 138, 142.)
Put more simply, though, a partition is type of lawsuit where multiples owners of one parcel of property can take their equity out of that particular parcel and go their separate ways. Outside of the courtroom, it’s typically the case that selling any piece of property requires the consent of every owner to do so. But when those owners aren’t thinking in similar ways, such as when one would only consider selling at some abnormally high price, the prospects of actually pulling one’s equity out of a piece of real property become quite grim.
The partition suit bypasses this inconvenience by, in most cases, mandating a sale by virtue of a court order (called an interlocutory judgment). Of course, undergoing this process can be both expensive and time-consuming, and there are plenty of instances where a court will consider physically splitting the property in lieu of selling it. As such, it’s a task best left to knowledgeable attorneys in the field, like those at Underwood Law Firm.
What is required for a Tenant in Common (TIC) to force a sale?
If a co-owner decides that partition is the best route to accomplish a sale, then the first and most important task to accomplish is proving ownership interest in the subject property.
This is because “a co-owner of property has an absolute right to partition unless barred by valid waiver.” (LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 493.) This means that if a tenant in common can show the court that they are actually an owner of the property, then they are entitled to partition. The phrase “absolute right” is not one to be taken lightly.
Indeed, as one court put it, “Ordinarily, if the party seeking partition is shown to be a tenant in common, and as such entitled to the possession of the land sought to be partitioned, the right to partition is absolute, and cannot be denied, ‘either because of any supposed difficulty, nor on the suggestion that the interest of the co-tenants will be promoted by refusing the application nor temporarily postponing the action.” (Priddel v. Shankie (1945) 69 Cal.App.2d 319, 325 (emphasis added).)
This is only half the battle, however. Most litigants don’t have trouble demonstrating ownership interest because they have their name on a deed or some type of arrangement with their fellow co-owners. But a court will not authorize a sale on that aspect alone. While the “right” to partition may be established early, the co-owner still needs to demonstrate their numerical interest before a sale can proceed.
As stated by the First District Court of Appeal, the first element of getting an interlocutory judgment requires “a determination of the parties’ interests in the property.” (Summers, 24 Cal.App.5th at 143.) Thus, once a co-owner can show that each ownership interest is concrete (each owner is a 50% owner, for example), a sale can proceed.
How the Lawyers at Underwood Law Firm Can Help
Co-owning property can be both a blessing and curse. And when things don’t work out, good people become stuck in bad real estate relationships. Getting trapped in these types of relationships can be stressful and frustrating, especially when the path forward is not entirely clear. Fortunately, the lawyers at the Underwood Law Firm specialize in partition actions and solving the difficult problems that can accompany them. If you have found yourself in one of these situations, then please do not hesitate to contact us today.