House divided – former unmarried couple navigates real estate law

By From page C3 | December 15, 2012

Q:  Dear Tim: My significant other and I have been living together for almost 18 years.  We’ve never been married, though most of our friends don’t even know we aren’t married. We bought a home together in 2001 and have lived there ever since.  This year we separated and I moved out. Now I’m concerned about the house.  If he keeps living there, does he have to make the payments?  I’d like to sell it and take the money so I can move closer to my family.
A: I’m assuming you don’t have any written agreement between the two of you that dictates how the house is to be handled if this situation occurs.  Had you both had the foresight to have what is called a, “Tenancy in Common Agreement” drafted, you could refer to that document for guidance in managing the property.
If you had been married, the divorce court would decide how the property was to be handled.
However, you now find yourself falling squarely into the world of real estate law.
Regular readers of this column are, by now, aware that real estate law has roots going back thousands of years.  Unlike family law, real estate law doesn’t care about the relationship between the parties.  Whether you thought of yourselves as husband and wife is irrelevant.  Instead, it treats all parties as sophisticated, emotionally detached investors.
The first thing you want to do is take a look at your deed.  If you don’t have a copy you can get one from the County Recorder’s office.
There are two different ways in which you can hold title with another person to whom you aren’t married.  The way you hold title affects what happens to the property if someone dies.  Since you have split up, I assume you don’t want him to inherit your half of the property.
The deed will tell you if you hold title as a joint tenant or as a tenant in common.
As a tenant in common, your one-half interest in the property will pass to your heirs, just like the rest of your estate.
Joint tenancy automatically passes your interest to the surviving owner at the instant of your death. If you hold as a joint tenant, you may want to see an attorney about changing the way you hold title.
My point is that this is something critical that you ought to be considering.
Now, to answer your question directly.
You are both on the hook for mortgage payments, taxes, etc.  Just because you choose not to live in the property doesn’t mean you are not responsible for the investment.  You could move back to the property if you want to.  You could even rent out your one-half interest to a complete stranger, which should give your co-owner some food for thought during negotiations.
If you can’t reach an agreement about selling the house you’ll have to file a lawsuit known as a partition action.  In a partition action each party will have the opportunity to buy the other party out, or the court will order the property sold.
The arguments that are raised during a partition action involve the distribution to the owners of the sales proceeds. Often, one party will argue they’ve put more money into the property and should get a bigger share of the proceeds.
Because of the time and expense of going through a court process, I hope the two of you can work out the details for getting the property sold.

Tim Jones


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