Articles Tagged with joint tenants

Underwood-Blog-Images-1-2-300x300Partitions by appraisal are a unique way to resolve a partition dispute. In essence, they are buyouts that the parties contractually agree to, allowing one party to remain on the jointly-owned property in exchange for purchasing the other co-owner’s interest at an appraised value.

This seemingly middle-of-the-road option, however, is one of the options available for inherited property under the Uniform Partition of Heirs Property Act. Specifically, the Act permits the non-partitioning party to purchase the other party’s interest at the appraised value, which can allow the property to remain in the family. This effectively grants the non-partitioning property an option to “partition by appraisal.” When a party agrees to buy the property at the appraised value but then cannot ultimately find the money for the purchase, what happens when a partition by appraisal fails?  

What is a Partition?

Underwood-Blog-Images-2-300x300American law has its roots in the laws of England. As such, many of the laws still on the books in the 21st Century depend on what English judges thought prior to our War for Independence began in 1776. Because our modern laws go back centuries since before the United States was a country, we should care about how our legal terms were originally understood as they may implicate a judge’s decision today. The most important of all the English Judges who influenced our modern laws were most likely Sir William Blackstone. 

Blackstone’s 1765 work, Commentaries on the Laws of England, is his most famous legal treatise, forming the backbone of common law analysis as modern lawyers understand it today. Without his efforts centuries ago, our conceptions of property, individual rights, and governmental authority would not be the same. His works remain cited even now in judicial decisions at all levels, including the Supreme Court of the United States. 

Blackstone’s comments on property law are particularly striking, for they bear the foundational ideas now found in our statutes governing real estate transactions, estate types, property rights, and ownership disputes. His analysis of tenancies in common and joint tenancy is so similar to our own California statutes that they warrant their own discussion. 

Underwood-Blog-Images-1-1-300x300Yes. When co-owners of property decide they want to go their separate ways but cannot come to an agreement on a buyout or reimbursements, they can institute a partition action and have the court system solve the problem for them. 

The presence of a life estate, however, substantially complicates this process. Additional evidentiary showings are required, and a partition might not even be available if the life estate owner fights the lawsuit. Thankfully, the Underwood Law Firm is more than familiar with partitions of all types and is here to assist property owners throughout the process. 

What is a life estate? 

Underwood-Blog-Images-300x300A “waste” claim is a means of recovering damages when a tenant on real property does substantial damage to the property itself. Most often, a waste claim arises when a person renting property causes damage while living there. But a waste claim isn’t restricted to landlords and tenants. It applies to nearly all situations where two or more people have some sort of interest in the common property.

On top of being their own cause of action that can be asserted in a lawsuit, waste claims can also potentially be raised in partition actions during the accounting stage. This allows property owners to approach the issue in the manner they see fit. Yet, understanding the contours of a waste claim is not as simple as it may seem. There are situations where damage to property is justified, meaning parties cannot always recover damages for the seemingly unjust actions of their co-owner(s).

In these situations, having an experienced real estate attorney at your side can make all the difference. The Underwood Law Firm encounters waste claims with regularity and is well-equipped with legal expertise to help guide those with property interests through this unique legal issue.

Underwood-Blog-Images-2-1-300x300A realtor should take the necessary legal steps to ensure that all real estate owners do so. When most people buy or sell property, they hire a real estate agent to assist with the process. While the concept of these agreements seems simple enough, these agreements can get complicated when the property in question is owned by more than one person. The Underwood Law Firm is familiar with these disputes and is in the ideal position to assist your dealings with real estate brokers. 

What is Needed for a Real Estate Listing Agreement to be Valid? 

California law provides that an agreement authorizing an agent, broker, or any other person to purchase or sell real estate is “invalid, unless [the agreement], or some note or memorandum thereof, are in writing and subscribed by the party to be charged or the party’s agent.” (Civ. Code § 1624(a)(4).) 

Underwood-Blog-Images-2-300x300Yes. Co-owners of property are entitled to certain rights, namely, the right to possess and use the property as they see fit. But sometimes, things do not work out with the other owners. 

Heirs to an estate can bicker, business relationships can fall through, and family dynamics can fall apart. This may result in a rightful owner of the property being ousted by the other(s). In these situations, finding the right real estate lawyer to assist in the process of recovering possession is crucial. The Underwood Law Firm, P.C. is familiar with these sensitive matters and has the legal acumen to help you recover possession of your property. 

Do cotenants each have a right to occupy their property?

Underwood-Blog-Images-3-300x300Joint tenancy is a special type of co-ownership recognized in California. It is commonly associated with married couples, ensuring that when one of them dies, their entire interest in the property passes to the other spouse. This is called the right of survivorship, and it is the defining trait of a joint tenancy.

The right of survivorship, however, can be an uncomfortable concept for co-owners, particularly when those owners are not related and are merely business partners. For that reason, co-owners can attempt to sever the joint tenancy to extinguish the right of survivorship. 

The Underwood Law Firm, P.C. is familiar with all types of cotenancies, including joint tenancies, and the various means of severing them under the law. 

Underwood-Blog-Images-4-300x300Co-owning property as tenants in common is the favored form of joint ownership in California. (Wilson v. S.L. Rey, Inc. (1993) 17 Cal.App.4th 234, 242 (S.L. Rey).) Yet, property held in tenancy in common brings with it a unique set of potential issues that are not present in the other forms of joint ownership recognized by the state. (see California Civil Code, § 682.) 

Different ownership interest percentages between co-owners can affect one’s responsibilities for common expenses and levels of disbursement on a sale. A fiduciary relationship between joint owners can disrupt a co-owner’s ability to acquire an encumbrance. Payments for improvements to the property may not be recoverable in an accounting action if deemed “unnecessary.” These are just some of the issues we will attempt to address in this post about the financials of tenancies in common. 

Developing Co-Owned Property

Underwood-Blog-Images-1-300x300In California, most real estate is held either as marital property, as a tenancy in partnership, as joint tenants, or as tenants-in-common. While holding title as spouses, or in a partnership, is relatively straight-forward, questions frequently arise as to the differences between “co-tenants” and “tenants-in-common.” This article will explore the difference between the second types of ways of holding title between unmarried individuals, which is generally known as “co-tenancy.” (Civ. Code § 682.) 

How is a joint tenancy created in real estate? 

Generally, creating and maintaining a joint tenancy is much difficult than creating a tenancy-in-common. First, a joint tenancy exists only when the “four unities” are concurrently present in the estate: unity of interest, unity of time, unity of title, and unity of possession. (Tenhet, 18 Cal.3d 150, 155.) Second, by statute, a joint tenancy exists “when expressly declared in the will or transfer to be a joint tenancy.” (CCP § 683.) 

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