You should hire an attorney to work with your brother and/or your brother's attorney to come up with an agreement about how to buy each other out, or to work out an understanding about sale or ownership. There may be options that everyone can live agree upon. Although your brother could sue for an order to sell the property, that is an expensive process and bad for everyone.

Brad Brereton
831-429-6391

The solution, of course is for you to buy your brother out.

I generally agree with Attorney Chen. The exception to a partition (forced) sale, is if you and your brother have a written property management agreement in which you both waive the right to bring a partition action.

I would recommend that you meet with a real estate lawyer, but also a loan broker, to see whether you can qualify to purchase your brother's interest, to avoid the costs and expenses of litigation.

Good luck.

The following will probably be the law In most states, but each state (including CA) may differ:

1. Your bro. could sell his 50% interest without your consent, bu he could not also validly sell your 50%. If he signed a deed purporting to sell the home and not just his 50%, the deed would not be valid as to your 50%. It might, however, help set up a future adverse possession claim by the buyer if you do not possess the home yourself or by a tenant. This claim would take years to come into being so there is no need to panic.

2. Your bro. could file a lawsuit to partition (i.e., divide) the home by sale. Unless there's some already existing agreement or deed provision barring such action, your bro. (a tenant-in-common with you; alternatively your co-tenant) has an absolute right to force partition of the land. If we were talking about a ranch, farm, timber land, or large undeveloped urban tract, he would probably be limited to suing to divide the land with each of you getting one piece instead of having to sell the land. Maybe that could be done with some multi-unit residential properties also. Since this is not practical with just about every single-family residence, he would probably not be able to get a judgment where the house is sold and the net proceeds are divided between the two of you.

You cannot successfully fight a properly drafted partition suit, but such a suit would be fairly expensive for your bro. to bring.

The bottom line is that he can make a valid sale of his 50% interest to someone else or bring suit to partition the home by sale. He can also make a sale that covers all interests in the home, but it would not be valid as to your interest. You would be stuck in either case -- if he sells just his 50% or purports to sell all interests -- with someone you might not like as a co-tenant.

As a practical matter, it might be best to agree to the sale of the home to a third party or, if you have the funds or credit, for him to sell his 50% interest to you. You probably should try to negotiate the best deal you can get with our bro. If that doesn't work, watch what he does. If he tries to sell all interests in the house and doesn't specifically limit sale to just his 50% interest, you probably should contact a CA real estate lawyer. You might even do it if he sells his own 50% because that might not be valid under CA law.

Remember, all of my comments above relate to the law as it exists in many, if not most, states. CA law could be just the opposite. It might now allow your bro. to sell just his rights. It might allow your bro. to sell all interests in the house (that's not likely, but it is possible). YOur bro. might not have an absolute right to partition the home by sale under CA law. You might check all of the above with a CA real estate lawyer if you do not want to or cannot negotiate an acceptable compromise with your bro. Good luck!

Yes, your brother can file a lawsuit for partition and sale against you to force you to sell.

This is a court procedure by which a judge will order the property sold and the proceeds distributed amongst the co-owners. The downside, however, is that you will not likely get market value for the property. Nevertheless, the filing of a partition lawsuit is often the impetus for the other owner(s) to agree to negotiate a settlement.

In cases where the co-owners cannot agree on the terms of the sale such as the listing agent or initial listing price, the court will appoint a partition referee to carry out the sale. To retain some control, the co-owners could establish parameters which set the bounds of the partition referee’s authority. Absent a consensus, the court simply grants the referee sole discretion and authority regarding the sale. However, any sale will be subject to court approval.

Upon granting judgment partitioning by sale of the property, the court will order that the proceeds of the sale pay the encumbrances thereon, and the net proceeds thereof then be divided between the parties in an equitable amount to be determined by the court, in addition to allowance, accounting, contribution, or other compensatory adjustment among the parties according to principles of equity, pursuant to California Code of Civil Procedure section 872.140. In such a partition action, you will need to present your evidence of why the court ought to distribute the proceeds differently than the ownership percentages.

Note that a partition action does not necessarily mean the property needs to be sold to a third party. One of the co-owners could end up buying out the co-owner(s) and become the sole owner, or alternatively, the court could reallocate the ownership percentages of each co-owner.