I am being sued for partition with a referee being named.
The deed says that I and the plaintiff own the property.
I am told that it means half ownership.
But then I am told that will not be the case when the referee sees that I paid only one fourth.
Real Estate Attorney
Did you have a question? Who is telling you these things? If it is your attorney, ask for clarification. If it is not your attorney, I would not worry about it.
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The issue may not be whether you own 1/2 or 1/4, but what were your contributions to the purchase and carrying costs.
In a partition action, the referee will perform an accounting. As part of the accounting, the referee may consider your initial contributions to purchasing the property as well as any subsequent contributions in order to apportion the proceeds of sale.
I am not a CA attorney, laws vary from state to state, therefore you should always consult a local attorney.
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1 lawyer agrees
The partition referee's job normally is just to facilitate a sale of the property. The judge will be the one making a determination as to how the sales proceeds as distributed.
Upon granting judgment partitioning by sale of the property, the court will order that the proceeds of the sale pay the encumbrances thereon, and the net proceeds thereof then be divided between the parties in an equitable amount to be determined by the court, in addition to allowance, accounting, contribution, or other compensatory adjustment among the parties according to principles of equity, pursuant to California Code of Civil Procedure section 872.140.
In such a partition action, the parties are entitled to present evidence of why the court ought to distribute the proceeds differently than the ownership percentages.
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.
Real Estate Attorney
First of all, having been involved in many of these cases, you should focus on resolving the matter prior to a forced sale of the property. The ONLY ones that win in these types of cases are the attorneys. Further, if the court finds that the partition action was in the best interest of the property, you may be forced to shoulder the legal expense.
That said, the referee will likely perform an accounting and will make adjustments for contributions and related issues. Once the property is sold, and the accounting is complete, the court will make the final order.
As to the way title is held, although you may hold a one- half interest, the court will look at substance over form and simply do the math as to the payments for the property. That said, there may be a reason you will be entitled to credit for a half interest in the proceeds of sale notwithstanding that you paid for only 1/4th. For example, if the plaintiff is the one that actually deeded the property to you, he may have gifted the other 1/4 interest to you or may have agreed to give it to you in exchange for your services or other consideration. In such case, you will be entitled to 1/2 of the proceeds from the sale.
Similarily, if you obtained the one-half interest from someone other than the plaintiff, you have a great argument that it is none of the plaintiff's business what you paid for the 1/2 interest and you will be entitled to 1/2 of the proceeds from the sale, regardless of the fact that you only paid for 1/4th.
The court will take all of these things into consideration.
Good luck.....but remember.....do whatever you can possibly do, within reason, to resolve this type of case quickly before it gets out of hand from a legal expense standpoind.