Real Estate Law

As real estate forms one of the largest bases of wealth for many individuals and business, disputes over real estate frequently occur because there is so much at stake. Real estate litigation is the formal process of resolving disputes over the ownership, use, sale, and development of real property.

An experienced real estate litigation attorney can advise you both about your legal rights, and about your options to ensure that you receive a suitable outcome for your situation. Frequently, parties are aware of only some of their rights, and lose out on valuable opportunities by failing to thoroughly investigate the situation.

Parties retain the firm to assist with these disputes through the use of informal negotiation, mediation, or trial. When important property rights are at stake, the firm is there to ensure that your rights are respected.

A "quiet title" action determines who the true owners of a property are under the law. These types of actions are common where there are disputes as to the ownership of real property, such as involving breaches of contract, real estate fraud, and easement disputes.

A common type of "quiet title" action is commonly known as a "Marvin" claim. A Marvin agreement is an implied or express contract made between two nonmarried cohabitants/partners regarding property rights during the romantic relationship. Under a California Supreme Court case known as Marvin v. Marvin (1976) 18 Cal.3d 660, 674, adults who voluntarily live together may validly share property rights with each other despite the lack of a marriage license.

As a form of cotenancy, a joint tenancy is one "owned by two or more persons in equal shares." (CCP § 683.)

Generally, creating and maintaining a joint tenancy is much more difficult than creating a tenancy in common. First, a joint tenancy exists only when the "four unities" are concurrently present in the estate: the 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 transferred to be a joint tenancy." (CCP § 683.)

Additionally, if at any point, one of the four unities is destroyed, then the joint tenancy is severed, and a tenancy in common results, thereby extinguishing the right of survivorship. (Tenhet, 18 Cal.3d 150,155.)

Undoubtedly, the defining characteristic of a joint tenancy is the right of survivorship. As the name implies, this right arises "only upon success in the ultimate gamble – survival." (Estate of Propst (1990) 50 Cal.3d 448, 458-459.) This means that "when one joint tenant dies, the entire estate belongs automatically to the surviving joint tenant(s)." (Grothe v. Cortland Corp. (1992) 11 Cal.App.4th 1313, 1317.) "Nothing ‘passes' from the deceased joint tenant to the survivor; rather, the survivor takes from the instrument by which the joint tenancy was created." (Ibid.)

Thus, whether real estate is held as a joint tenancy is extremely significant when held with a non-family member or someone whose party does not want to inherit the property after their passing.

If a joint tenancy really exists, it means all ownership between the co-owners is equal, regardless of acquisition costs and property expenditures. By the estate's very definition, equal ownership is key. (CCP § 683; Milian v. De Leon (1986) 181 Cal.App.3d 1185, 1195.) So, if parties truly intend for this estate to be created, it does not matter if one spent five times more on the mortgage or down payment. Equality of interest persists.

The creation and maintenance of a tenancy in common are far less stringent than that of a joint tenancy. In California, these forms of ownership are similar in many respects. (see Zanelli v. McGrath (2008) 116 Cal.App.4th 615, 630 ["the rights of tenants in common and joint tenants with respect to property are the same"].)

For instance, each joint tenant or tenant in common has a right to use and possess the entire property, can lease their right to occupy it to third parties, and may freely transfer their interest in the property. (see Cole v. Cole (1956) 193 Cal.App.2d 691, 695-696 (possession); Tenhet v. Boswell (1976) 18 Cal.3d 150, 157, (Tenhet) (lease); Thompson v. Thompson (1963) 218 Cal.App.2d 804, 808 (selling interest).)

The same is true of liens and encumbrances. (Grothe v. Cortlandt Corp., 11 Cal.App.4th 1313, 1318.) "A joint tenant may, during his lifetime, grant certain rights in the joint property without severing the tenancy. But when a such tenant dies, his interest dies with him, and any encumbrances placed by him on the property becomes unenforceable against the surviving joint tenant." (Id.)

Along those lines, if the court determines that the parties to a partition intended a tenancy in common, then the court may order reimbursement in proportion to the amounts contributed to the purchase price. (Milian v. De Leon (1986) 181 Cal.App.3d 1185, 1196.)

A Marvin agreement is an implied or express contract made between two nonmarried cohabitants/partners regarding property rights during a romantic relationship.

Generally, unmarried partners living together can enter a variety of contracts, including but not limited to pooling their earnings to share property equally, holding property as joint tenants or tenants in common, or keeping their earnings and property separate. (Marvin v. Marvin (1976) 18 Cal.3d 660, 674; Hill v. Westbrook's Estate (1950) 95 Cal.App.2d 599; Della Zoppa v. Della Zoppa (2001) 86 Cal.App.4th 1144.)

The Supreme Court reasoned that adults who voluntarily live together and engage in sexual relations are just as competent as other individuals to contract with respect to their earnings and property rights. (Marvin, 18 Cal.3d 660, 673.) Cohabitation is a prerequisite for the validity and enforcement of a Marvin agreement. (Bergen v. Wood (1993) 14 Cal.App.4th 854, 858.) If an unmarried person wants recovery from a Marvin agreement, that person must demonstrate a stable cohabitation relationship. (Id.)

If established, a Marvin agreement gives property rights to a romantic partner similar to that of a married individual. As such, a Marvin claim works similarly to a breach of contract claim but is ultimately based on equity.

In California, an ouster is a wrongful dispossession or exclusion by one tenant of his cotenant or cotenants from the common property of which they are entitled to possession. (Estate of Hughes (1992) 5 Cal.App.4th 1607, 1612.)

When co-owners purchase property together and become joint tenants or tenants in common, they are entitled to certain rights regarding the property. Each owner is entitled to lease the property out and collect rent, encumber their interest in the property with a lien, and develop the property as they see fit.

The most important right among co-owners, however, is the right to possess and occupy the property. "Each tenant in common equally is entitled to share in possession of the entire property, and neither may exclude the other from any part of it. (Zaslow v. Kroenert(1946) 29 Cal.2d 541, 548.) It is the fundamental rule that each cotenant has a right to occupy the whole of the property. (Jacobs v. Scobie (1939) 12 Cal.2d 618, 623.)

This general rule of a right to possession also means that a co-owner also cannot be excluded from the property. No cotenant "is entitled to possession or usage [of property] which excludes for any period of time alike possession by his co-owners. (Krum v. Malloy(1943) 22 Cal.2d 132, 135.)

For example, "Shawn" and "Julie" purchase a home as joint tenants with a 50/50 ownership split. Both of them are allowed to occupy and use the whole property, despite the 50% ownership. Neither of them is allowed to exclude the other from the home. If they do, then they committed an "ouster."

To resolve these problems, the State Legislature enacted Civil Code section 843, which simplified the process of ouster actions. While the statute does not provide the exclusive means of proving an ouster, it does provide a means of determining an ouster through a formal notice procedure.

The code provides that a tenant who is not in possession may serve a written demand for concurrent possession to the cotenant occupying the property. This demand must reference section 843 and provide a time for concurrent possession to be offered. An ouster is thus established if, within 60 days of service of the demand, the tenant in possession does not offer and provide unconditional concurrent possession of the property to the tenant out of possession. (Civ. Code § 843(b).)

Joint tenancies are just one way co-owners can hold title. But how title is held to property can make a substantial difference in a party's rights to real estate. These rights can come to the forefront in, for instance, partition actions, where joint tenants are expected to split costs and distributions 50/50.

As each case is unique, property owners would be well-served to seek experienced counsel familiar with joint tenancies and the ways in which they can be severed. At Underwood Law Firm, P.C., our knowledgeable attorneys are here to help. If you are concerned about severing your own joint tenancy, if you're worried that your co-owner has severed one themselves, or if you just have questions, please do not hesitate to contact our office.

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