Evicting a Sibling from an Inherited House Real Estate AttorneyEvicting a Sibling from an Inherited House Real Estate Attorney

Inheriting a Home with Siblings

It is extremely common for family members to pass down real estate to younger generations. Parents, grandparents, aunts, uncles, and other family members may choose to leave their valuable real estate assets to family members they know and love. Commonly, siblings inherit a home together from a deceased parent. But just because siblings are now co-owners of a property together doesn’t mean that they will always agree on what to do with the property after the death of their parents.

Sister or Brother is Living Rent Free in Your Inherited Home

Perhaps your sister is living rent free in your inherited home, or maybe your brother won’t move out of your deceased parents’ house. Or maybe one sibling wants to live in the family home, another wants to rent it out to a third party, and a third wants to sell it.

Frequently, the sibling lived in the inherited house before their parent passed away, sometimes because that sibling care for the parent in their final years of life. Perhaps the sibling living in the inherited house believes that mom or dad intended them to be able to live in the house for the rest of their life, as well. Generally, the trust or will makes no mention of such a life estate for the sibling living in the inherited house.

Further complicating matters, often times, the sibling living in the inherited house has made this property their personal residence for many years such that they have no plans of moving elsewhere. Perhaps the family home is in an area or is of a quality that would be unaffordable to the sibling who is living there if they had to buy it on their own. In other words, if they were required to live within their own means, they would not be able to afford the family home.

In California, the only way to equitably divide each co-owner’s interest in the property is to force the sale of the property through what is known as a partition action.

Can I Evict a Sibling from our Deceased Parents’ Home?

As co-owners of a property, you cannot evict a rightful co-owner. Indeed, “Each tenant in common equally is entitled to share in the possession of the entire property and neither may exclude the other from any part of it.” [1] Zaslow v. Kroenert (1946) 29 Cal. 2d 541, 548. jQuery(‘#footnote_plugin_tooltip_16077_2_1’).tooltip({ tip: ‘#footnote_plugin_tooltip_text_16077_2_1’, tipClass: ‘footnote_tooltip’, effect: ‘fade’, predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: ‘top center’, relative: true, offset: [-7, 0], }); The unlawful exclusion of a co-owner from a jointly owned property is known as ouster.

In fact, co-owners generally cannot evict other unwanted house guests who may otherwise be a tenant-at-will. As one court explained, “a single cotenant [i.e., co-owner] may confer occupancy rights upon a third person.”[2]Miller & Starr, Right to lease or license to a third person, 4 Cal. Real Est. (4th ed.) § 11:3 (citing Atlantic Oil Co. v. Los Angeles County (1968) 69 Cal. 2d 585, 602) jQuery(‘#footnote_plugin_tooltip_16077_2_2’).tooltip({ tip: ‘#footnote_plugin_tooltip_text_16077_2_2’, tipClass: ‘footnote_tooltip’, effect: ‘fade’, predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: ‘top center’, relative: true, offset: [-7, 0], }); This means that your siblings family members can stay at the property unless you take action.

How to Evict Siblings from an Inherited Property with Multiple Owners

While co-owners have limited rights outside of court, they can force the sale of inherited property by initiating a court-ordered division of the property known as a partition action. In California, the “right to partition is absolute,” [3]Priddel v. Shankie (1945) 69 Cal.App. 2d 319, 325. jQuery(‘#footnote_plugin_tooltip_16077_2_3’).tooltip({ tip: ‘#footnote_plugin_tooltip_text_16077_2_3’, tipClass: ‘footnote_tooltip’, effect: ‘fade’, predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: ‘top center’, relative: true, offset: [-7, 0], }); meaning that any co-owner with any equity in the property may force the sale of the property through a partition action.

After a partition action is filed, anyone residing on the property will be removed in connection with the property being sold. So, while you cannot “evict” a beneficiary living in an inherited house through an unlawful detainer action (also known as an eviction), it is possible to accomplish the same result to have the sibling and anyone else living there removed from the property in connection with selling the inherited house.

How Do I Remove my Sibling from the Inherited Property so It Can be Sold?

Once a partition action has commenced, a partition referee will be assigned to market and sell the property. The partition referee is a neutral third party whose fiduciary duty is to protect the interests of the co-owners of the property. To best ensure that all parties receive their equitable portion of the sale of the property, a partition referee may hire professionals to repair or maintain the property. Most importantly, the partition referee can be empowered to change the locks and remove your sibling and any other current residents from your parents’ house as part of the sale.

How Can a Partition be Used to Evict My Sibling from the Inherited Home?

This partition referee’s authority to evict a sibling from an inherited home gnerally arises under the court’s ability to “make any decrees and orders necessary or incidental to carrying out the purposes of this title and to effectuating its decrees and orders.”[4]California Code of Civil Procedure 872.120 jQuery(‘#footnote_plugin_tooltip_16077_2_4’).tooltip({ tip: ‘#footnote_plugin_tooltip_text_16077_2_4’, tipClass: ‘footnote_tooltip’, effect: ‘fade’, predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: ‘top center’, relative: true, offset: [-7, 0], }); It also arises from the court’s right to “issue temporary restraining orders and injunctions…for the purpose of… Preventing waste” or “Restraining unlawful interference with a partition of the property ordered by the court.”[5]California Code of Civil Procedure 872.130 jQuery(‘#footnote_plugin_tooltip_16077_2_5’).tooltip({ tip: ‘#footnote_plugin_tooltip_text_16077_2_5’, tipClass: ‘footnote_tooltip’, effect: ‘fade’, predelay: 0, fadeInSpeed: 200, delay: 400, fadeOutSpeed: 200, position: ‘top center’, relative: true, offset: [-7, 0], }); In other words, if your sibling is refusing to cooperate with the orderly sale of the property in a partition, the court can empower the referee to ensure compliance by removing them from the property. As a practical matter, once the partition judgment empowers the referee to take such actions, the sibling in possession usually sees the wisdom of cooperation.

In other words, a partition referee will take care of accomplishing the same result as an eviction by removing the uncooperative sibling and make sure the property is in tip top shape to be sold so you receive your maximum equitable portion of the proceeds of sale. You may even recover attorney’s fees, costs, offsets, reimbursements, and credits through the accounting process of a partition action, especially if your sibling is uncooperative. Luckily, eviction after death of an owner is possible by forcing the sale of the property through a partition action.

Partitions Against Siblings are Extremely Common

If you have inherited a family home with a sibling who refuses to sell, perhaps because they are living in the inherited home without paying rent, understand that you are not alone. This common method of estate planning of leaving the family home to each of the siblings equally often results in conflicts between the siblings. Those conflicts are only further exacerbated by dysfunctional interfamily relationships, prior family disagreements, and the lack of a parent to keep order among the family.

Co-owning a house with a sibling comes with its own challenges. Indeed, perhaps the sibling feels entitled to certain rights in the house or offsets from the sale because of matters having nothing to do with the family home, or because of their personal financial situation.

Ultimately, many siblings who inherit a family home conclude that they would never have voluntarily become co-owners of a house with their siblings, and that they must now act to end the involuntary co-ownership. Accordingly, by filing a partition action, the siblings unlock the equity that their parents left to enrich their lives, not just the life of the sibling living in the inherited home.

Contact an Experienced Partition Attorney in California

If you want to end your co-ownership relationship, but your co-owner won’t agree, a partition action is your only option. Our experienced partition lawyers have years of experience ending co-ownership disputes and can help you unlock the equity in your property. For a free, 15 minute consultation with an experienced partition attorney at Talkov Law, call (844) 482-5568 or fill out a contact form online.

References[+]

References
1 Zaslow v. Kroenert (1946) 29 Cal. 2d 541, 548.
2 Miller & Starr, Right to lease or license to a third person, 4 Cal. Real Est. (4th ed.) § 11:3 (citing Atlantic Oil Co. v. Los Angeles County (1968) 69 Cal. 2d 585, 602)
3 Priddel v. Shankie (1945) 69 Cal.App. 2d 319, 325.
4 California Code of Civil Procedure 872.120
5 California Code of Civil Procedure 872.130

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