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What To Do When Co-Owners of Real Property in California Don't Agree

Messina & Hankin LLP

Every now and then I receive calls from clients where the resolution of their problem would at first appear to be a trip to probate court, but sometimes has a twist that takes me to the world of civil litigation.

In this case, my client told me that she needed to sell her mother’s residence to pay for bills she had received for her mother’s nursing home care. No problem I said; do you have power of attorney for your mother (California Probate Code §4022) that would allow you to sell the residence? No. Is she competent (California Probate Code §812) to give you a power of attorney? No. Should we consider establishing a conservatorship (California Probate Code §1801), with you as the conservator, and then sell the property? No. Well, if the answer to all the foregoing is no, when did your mother die? She’s not dead; my mother gifted the residence to my brother and me and he does not want to sell it. Oh …..

So being much wiser now, I asked how is title to the residence held… my client said that it was held as tenants in common (California Civil Code §686) with her brother. The solution: I recommended that my client consider a partition action (a means by which co-owners of property can divide it or sell it under court supervision), that would result in the house being sold so that she would have funds for her mother’s nursing care.

More about that in the next post.

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