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Carmichael Partition Lawyers

Carmichael is a city in Sacramento County, founded in 1909 by Daniel W. Carmichael as an agricultural colony. Carmichael is largely comprised of single-family homes, made up of new home buyers. New home buyers can encounter joint ownership problems, which often can be solved by a partition action. An experienced Carmichael Partition Lawyer will be able to provide the best advice on when a joint ownership situation may require legal action.

Carmichael Partition Attorneys usually find partition actions to be the best remedy for joint owners in disputes in four broad categories:

  • Parent-Child shared tenants in common in real estate;
  • Brother-Sister shared tenants in common in real estate;
  • Investor-Investor shared tenants in common in real estate; and
  • Significant others shared tenants in common in real estate;

Most home-owners have mortgages on their property. In a partition action, a knowledgeable Carmichael Partition Lawyer will ensure that the mortgage company, or bank, is included as part of the lawsuit. This is because the bank has rights that must be protected under the mortgage with respect to the property. Thus, a partition lawsuit cannot alter or impair the mortgage. When a mortgage applies to an entire piece of property that is partitioned, the mortgage security interest cannot be split. (Rich v. Smith (1915) 26 Cal.App. 775.)

In a partition action, a lien existing only on the undivided interest of a single party becomes a charge only on the share allotted to that party and is subject to a lien for the party's share of the costs of the partition action because the Code provides that a lien for costs has priority over any other lien except other liens for costs.

Thus, where a joint property owner secures a judgment against a co-owner and the other owner’s property is later partitioned, then the part of the property allocated to the other owner is subject to that lien, and it cannot be removed before the partition decree. (see Oliver v. Perry (1934) 220 Cal. 327.)

If a property owner gives a mortgage only for their share of jointly owned property, however, then a court may attach that mortgage to that specific parcel, even though the mortgage did not cover it in the beginning. (Lloyd v. Davis (1899) 123 Cal. 348.) In other words, the court may require the person who took out the mortgage to take their newly-partitioned property as subject to the mortgage.

The larger idea is that the court wants to ensure that anyone who lends money on real estate is protected, and that a partition action is not used as a device to evade lawfully-owed debts. After all, a partition is an equitable action, and equity is ultimately-based on “fairness.” Similarly, if a person has not taken out a loan on the property, the courts do not see it as fair to force them to pay a debt owed by another. (see Citizens Sav. Bank of San Diego v. Bennett (1920) 182 Cal. 748.) Instead, the courts will act to try to protect innocent parties.

At the Underwood Law Firm, our Carmichael Partition Attorneys are well-versed in the legal remedy of partition, and the issues involving property liens, and are ready to discuss your legal issues.

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“We were in need of a real estate attorney. Eli Underwood provided excellent legal advice and services. He explained everything well and followed through with all important issues that needed attention. We found him to be reliable, courteous, patient and extremely professional. We highly recommend Mr. Underwood without any reservations.” I.S.
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