Articles Tagged with Multiple owners

6142023-300x300Yes. California law allows a co-owner to take out a mortgage without the other co-owners consent or knowledge. 

Co-owning property with other parties can be quite a responsibility that can be difficult to manage. One particularly stressful aspect of managing property is managing the debt that comes with financing the property. Some parties may even want to take out more debt without letting their fellow co-owners know. If such a debt or encumbrance on the property is taken, it is still enforceable and allowable and can result in the sale of the entire property. 

California Law on Co-Owner Mortgages Without Consent

672023-300x300Partitions sales and divorce sales are two different ways that a property can be sold.  One difference between the two is that in a partition sale, the court usually decides the proportion of ownership and how the proceeds are distributed among the owners, while in a divorce sale, the court generally must divide the property equally. Another difference is that the divorce sale process is similar to a normal real estate sale. Both sales can be determined informally among the parties or ordered by a court.   

The Partitions Sale Process

Usually, partition sales are ordered by a court. This is because partition lawsuits are often brought before courts by a property owner who wants to force a sale if the parties cannot come to an agreement. Read more about partition actions generally here

692023-300x300California Code of Civil Procedure section 872.020 is under Title 10.5 Partition of Real and Personal Property. This statute details the scope, or in other words, the actions of partition that the title controls. The statute aims to clarify the property to which Partition Law actions may apply. 

Code of Civil Procedure section 872.020 states 

This title governs actions for partition of real property and, except to the extent not applicable, actions for partition of personal property. 

5312023-300x300The California Partition Law begins in Code of Civil Procedure section 872.010 with definitions. These definitions apply throughout the entirety of the Partition Law, which ends only in Code of Civil Procedure section 874.323. The point of this statute is to provide uniformity throughout the Partition Law and reduce any uncertainty about the meaning of any terms so that the law may be applied without any debt. 

Code of Civil Procedure section 872.010 states 

As used in this title: 

5242023-300x300There are two common ways an individual can own property: (1) as a tenant in common or (2) as a joint tenant. In California, there is a presumption that the co-owners of a piece of property are tenants in common unless the deed expressly states that the co-owners are joint tenants. 

In a joint tenancy, there is a right of survivorship, meaning that when one joint tenant dies, the surviving joint tenant inherits the other joint tenant’s interest in the property. There is no right of survivorship in a tenancy in common. In certain circumstances, different rules or laws apply when a property is held in a joint tenancy versus a tenancy in common. For example, there are certain laws for property taxes that apply for a tenancy in common that is different from a joint tenancy. 

At the Underwood Law Firm, our attorneys are more than familiar with property taxes and the requirements that follow. This area of law can be complex and entangled in technicalities. Our attorneys are here to walk you through the law step-by-step so that you are not lost in the maze of rules and regulations and to get the best possible results from transferring your property ownership. 

5192023-300x300In every property co-owned by two or more persons, there are common costs. Common costs are those costs for the property that are common to all owners or for the common benefit of all owners. In California, cotenants are required to pay for their portion of the common costs. Therefore, cotenants must pay for their share of expenses to operate and maintain the property. The portion of common costs one must pay depends on the ownership interest of that cotenant. 

At the Underwood Law Firm, our attorneys are more than familiar with co-ownership and the requirements that follow. 

What are Common Expenses?

5172023-300x300Lawsuits that affect interests in real property, such as partition actions, often require courts to adjudicate competing claims regarding who should have title to or possession of real property. In general, courts adjudicating such disputes follow the principle of “first in time, first in right.” Under this principle, “a conveyance recorded first generally has priority over any later-recorded conveyance.” (First Bank v. East West Bank (2011) 199 Cal.App.4th 1309, 1313.) 

An important factor that courts consider when adjudicating cases affecting interests in property is whether each party affected by the court’s judgment had notice of the litigation or judgment. A judgment affecting title to or possession of real property that is recorded imparts “constructive” notice to a subsequent transferee or encumbrancer. When recorded, such judgment is effective against any subsequent conveyance or encumbrance, regardless of whether the parties to that judgment receive notice about the subsequent conveyance or encumbrance. (Civ. Code, § 1214.) 

In contrast, a judgment that is not recorded with the recorder’s office of the county in which a property is located does not impart constructive notice to subsequent transferees or encumbrancers of the property. Any such judgment generally is not binding on a subsequent transferee or encumbrancer who acquires and records an interest in the property without notice of the prior litigation or judgment. (Civ. Code, § 1214.) 

5102023-300x300Generally, a co-owner of real property may commence an action in a partition. Owners of an estate of inheritance, a life estate, or an estate for years who hold such interest concurrently or in successive estates may seek to partition the property. (CCP § 872.201(a)(2).) Those with concurrent interest in the property may partition the property as of right unless barred by a valid waiver. (CCP § 872.710(b).) As such, a co-owner of the property has an absolute right to partition, absent a valid waiver. (Orien v. Lutz (2017) 16 Cal.App.5th 957.) 

What are the Different Types of Co-Owner Relationships? 

Partition actions most often result from joint ownership problems falling into four broad categories: (1) Father/Mother-Son/Daughter tenants in common in real estate; (2) Brother-Sister shared tenants in common in real estate; (3) Investor-Investor shared tenants in common in real estate, and (4) Non-Married Partners shared tenants in common in real estate. 

4282023-300x300Partitions are lawsuits that split up the property between multiple co-owners so that each can take their equity out of the home. The prototypical partition is that between unmarried partners or business partners. Both own equal shares, but only one wants to end the relationship and take their money out. Partitions enable this to happen, usually ending with a court-ordered sale of the subject property.  

The presence of a trust changes this calculus. This is because a trustee typically holds the property for the benefit of another. (Estate of Yool (2007) 151 Cal.App.4th 867, 874.) As such, pursuing a partition becomes much more difficult to do, especially because partitions cannot be used to disrupt the purpose and provisions of an express irrevocable trust.

At the Underwood Law Firm, our attorneys are well-versed in these matters and familiar with the intricacies of the interactions between property law and probate procedures. The following are steps that every litigant should keep in mind before pursuing the partition of a property subject to a trust. 

4262023-300x300A deed is a legal instrument, evidenced in writing, to confirm the ownership interest or legal rights of an owner of real property. Essentially, a deed is necessary to determine the titleholder of a piece of real estate. Moreover, a deed grants an owner of real property legal rights to convey, sell, or transfer the property. Therefore, when purchasing a piece of real property, it is extremely important for a person to obtain a deed in order to evidence their ownership in writing and protect their legal rights in the property.    

However, a deed is not just a simple piece of paper establishing a person’s ownership interest in the property. There are several elements that are required in order for a deed to be valid.  At the Underwood Law Firm, our attorneys are more than familiar with the elements of a deed and its effect on real property. 

Elements of a Valid Deed

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