Can My Ex-Girlfriend Rent Her Half of the Property to a Stranger Without My Consent?
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Answer:
It may be necessary to file a partition action if you are unable to negotiate privately. Tenants in common hold title to real or personal property so that each has an "undivided interest" in the property and all have an equal right to use the property. Tenants in common each own a portion of the property, which may be unequal, but have the right to possess the entire property. There is no "right of survivorship" if one of the tenants in common dies, and each interest may be separately sold, mortgaged or willed to another. A tenancy in common interest is distinguished from a joint tenancy interest, which passes automatically to the survivor. Upon the death of a tenant in common there must be a court supervised administration of the estate of the deceased to transfer the interest in the tenancy in common.
Tenancy in common is another form of co-ownership of property that can exist between any two or more persons. Tenancy in common can be created by deed, will, or by law. Tenants in common, like joint tenants, must act together to decide how they are going to enjoy and use the property. Problems about the management and improvement of the property, and how the income stream is to be divided, can exist. A distinguishing characteristic is that there is no right of survivorship. Each tenant can dispose of their separate and distinct, yet undesignated, interest in the property in any way they choose.
Each co-owner can sell it or give it away. They can direct its eventual disposition by last will and testament, or they can ignore the problem. Each co-owner’s property will be distributed, when they die, according to the law of property descent and distribution. Several of the more important characteristics of a tenancy in common are:
1. Each tenant in common has the power to dispose of their separate and distinct, yet undesignated interest, in whatever property is involved, any way they choose.
2. When a co-owner dies, their interest does not pass to the surviving tenant-in-common. It passes to the surviving co-owner spouse, or to some other person or party, but only if the property owner so indicates his wishes in his last will and testament. Otherwise, the property passes under the laws of intestacy.
If you are unable to get them to agree through private negotiation, it may be necessary to bring a partition action in court. However, as a joint tenant, you have a right to occupy the property.
A partition action is a court action to divide property. Partition statutes allow those who own property in common to sever their interests and take their individual share of the property. An action for partition usually arises when a property is jointly owned and there is a dispute as to how to divide property, or in a dispute as to whether property should be sold. One co-owner of real property can file to get a court order requiring the sale of the property and division of the profits, or division of the land between the co-owners, which is often a practical impossibility. Normally, a partition order provides for an appraisal of the total property, which sets the price for one of the parties to buy out the other's half. The partition statutes govern actions for partition of real property, but the partition statutes do not apply to property divisions under the Family Law Act or in other types of cases specifically governed by other statutes. A partition action may be initiated and maintained by any of a co-owner of personal property; an owner of an estate of inheritance, an estate for life, or an estate for years in real property where such property or estate therein is owned by several persons concurrently or in successive estates. Generally, a partition action may be maintained only by a person having the interest in the property, however, an equitable interest, is sufficient to support a partition action. A 'partition in kind' refers to land partitioned conveniently and equitably between or among the owners. Alternatively, it must be sold as a single parcel and the proceeds divided among the owners. If two or more people who own a property as tenants in common or if people who are not married to each other own a property as joint tenants with right of survivorship develop a dispute concerning the property, any owner may bring a partition action with the court to get the property divided between owners. While the lawsuit is pending, all owners will have equal access to and interest in the property. This arrangement applies regardless of whether the mortgage is in one owner's name or the name of all owners.
Partition may be either voluntary or compulsory. Voluntary partition is when the cotenants (owners) divide the property themselves, usually by exchanging individual deeds. Each co-owner owns a part of the property and ceases to have an undivided interest in the whole. The parties can also provide for the sale of the property and divide the proceeds among themselves.
When the co-owners cannot agree to a voluntary partition, a lawsuit to compel partition can be filed to sever property interests. Unless there are exceptional circumstances, a tenant in common or a joint tenant has the absolute right to seek a compulsory partition. Partition must be made even if every other owner objects to it. The motives of the party seeking partition are irrelevant, and the court that hears the lawsuit has no discretion to deny partition. Its main function is to determine the method of executing the partition. Commonly the court will order the property sold and the proceeds divided, instead of ordering a physical partition of the property.
Please see the following from http://www.aoausa.com/Articles/2009/April/2-%20PARTITION%20OF%20PROPERTy.pdf:
"Partition by division, sometimes referred to as “partition in kind,” is favored since it does not compel a person to sell property against his will or disturb an existing form of inheritance. In general, forced sales are strongly disfavored in California and the burden of proof to compel a conveyance rests with the party endeavoring to force a sale. If the Court is able to partition the property by physical division, it will do so, rather than order its sale.
There are two types of evidence which typically justify a partition by sale rather than by division. The first is evidence that the property is so situated that a division into sub-parcels of equal value cannot be made. (Usually that is the case with an apartment building. There is no practical way to physically sever a tenement.) In order to meet this test, the party desiring a partition sale must show that the land cannot be divided equally.
The second type of evidence which supports a partition sale rather than division in kind is economic evidence to the effect that, due to the particular situation of the land, the division of the land would substantially diminish the value of each party’s interest. (Attorneys reading this article may telephone me for a further discussion of the preference of partition by sale and the leading 1982 Court of Appeal decision setting forth the parameters.)
A middle ground between partition by division and partition by outright sale is partition by appraisal. This latter method empowers one party, upon court approval, to purchase the other party’s interest at its market value.
Concluding Remarks
An action for partition of real property is generally a remedy of last resort. It is almost always allowed by the court and, since judgment of one form or another is virtually assured, the parties should do their best to negotiate their own settlement without filing a partition action.
One non-judicial method often used for resolution is a procedure whereby the co-owners each appoint an appraiser to value the property. Through a variety of techniques, the appraisals may be averaged or weighted so as to determine a fair value. Co-owners may then have the right to buy out any other co-owner based on the appraised value, or else have the property placed on the market for sale at that value."
