Concerning a joint tenancy of three parties: One JT spouse has resided on property for approx. 15 yrs with no financial help whatsoever (p...

Question

Concerning a joint tenancy of three parties: One JT & spouse has resided on property for approx. 15 yrs with no financial help whatsoever (property taxes etc) from other two JT's. Now, 2nd JT has proclaimed he is moving onto property w/ wife. No matter there's no room for them & 1st JT is elderly & extremely stressed about his intentions. Since it is a Joint Tenant property, does JT #1 have any legal recourse as to preventing 2nd JT from moving onto property? I've heard filing & recording an abandonement of property as to 2nd Jt, but wouldn't that require his signature?

Answer

Co-owners of real property have equal rights to occupy the real property. As a practical matter, however, if one party is in possession and the other wants to move in, the first party can simply refuse to allow the other party to move in. After all, the owner in possession probably has the ability to keep others out of the property by merely refusing entry to them. If anyone calls the police it is unlikely that the police will force the party in possession to allow the other party to move in; in fact the police are likely to tell the parties that thieir dispute is a "civil matter" and that they need to consult attorneys concerning their rights.

The only way you are going to resolve this type of dispute is to: (1) refuse to allow the other party to enter the property; (2) reason with the party who has declared they are going to move in and get them to agree that they will not attempt to occupy the property; or (3) ask the 2nd party to "buy-out" the owner/occupant's ownership interest for a reasonable price; or (4) the owner/occupant offers to "buy-out" the 2nd party's interest for a reasonable price; or (5) file a partition action to have the court decide the parties' respective interests in the property and then sell the property and divide the net proceeds of sale (the amount left after paying attorney's fees, broker's commission, and the costs of sale of the property) in accordance with the cour'ts determination of the parties' rights.

Partition actions rarely result in the best result because the property which is the subject of the action will never be sold for it's actual value. Partition actions can be costly, in terms of attorney's fees and costs (which generally are paid from the proceeds of sale), and consume a fairly long period of time. The best possible solution to a partition action is for the parties to agree on a sale, agree on the agent who will handle the sale, agree on a purchase price to ask, and agree to a a division of the proceeds.

Answer

I pretty much agree with Mr. Hoffman's answer. It should be pointed out that if JT #1 refuses to allow JT #2 have shared ("concurrent") possession, this amounts to what is legally known as an "ouster" and the Civil Code provides JT #2 a remedy (damages). See Civil Code section 843. Solving this matter must include JT #1's recognition that JT #2 has significant rights, notwithstanding that JT #1 has been paying the taxes, etc.; and similarly JT #2 must recognize that he cannot restore himself to shared possession by self-help means such as breaking in or otherwise creating a breach of the peace. If I were advising JT #2 I would tell him to serve the written demand for co-possession described in CC 843(b). If I were advising JT #1, I would probably suggest filing a lawsuit for partition and then negotiate for a quick out-of-court resolution such as a buy-out or sale of the property on the market under normal commerical terms and conditions. After 15 years, JT #1 has to realize that the free ride in exclusive possession of a house that he only owns 1/3 is coming to an end, and a buy-out, a lease of the other owners' rights of possession, or an outright sale of the property seems to be on the horizon.