Does Women's Use of restraining order constitute an ouster

[quincy]

The Court did not order GF to stay in the house. That was her choice, and that choice affected the ouster.

You have the right to change the locks on your door. But if you exercise that choice in order to exclude a cotenant, that is ouster.

The mortgage obligations only accrued because GF refused to sell, denying BF his equitable right to sell property he owned.

A court cannot oust one cotenant in favor of another - to do so would violate either or both of the countracts clause or the takings clause of the constitution.

The court ordered the BF to stay away from the GF, though, and the GF is in possession of the house. Hence, the BF is excluded from the house. The GF has not refused the BF entry (or maybe she has) but it is the court order rather than the GF that prevents him from entering the home.

The mortgage obligations are there because BF and GF decided to purchase a home together and sign the mortgage papers together, making them equally liable for the payments on the loan.

The BF and the GF have created a mess that they now need to clean up - and, as Silverplum said early on, the mess is best cleaned up with the help of separate attorneys in their area who will represent their separate interests in the joint property.

Again, the BF can potentially recover damages, that represent his loss of value of the use of the home (e.g., possibly recover rent payments made to a landlord), this once the property is sold and the proceeds divvied up. But if he is not paying on the mortgage loan during his forced absence from the home, then the GF can claim those payments.

 

[tranquility]

He cannot demand entry and recover possession without violating the order.

The court order does not relieve him of his mortgage obligations.

I would claim he has not lost possession and would have no need to "recover" it. Ownership is many sticks. Some bundle of sticks leads to the jargon of "possession". He has certainly not lost all of the possession sticks. As to if he lost any of them is more problematical. I think not. But, it would depend on the specific order.

 

[ProperProPer]

The court ordered the BF to stay away from the GF, though...

No case agrees with you. Again, I ask where is the case? BTW, the Court order never mentions the address of the home, just stay away from the GF, her place of residence and place of work.

Your argument really claims that a DV-RO can award punitive damages in the form of property entitlements, though this is not the intent of the order. To say so presents problems with equal protection and due process.

Could you address the Civil Code 843 demand point, Estate of Hughes (1992)? I have noone with any experience here.

 

[tranquility]

Completely wrong. No case has ever agreed with this assertion in CA. Per Regalado v. Regalado (1961) 198 Cal.App.2d 549.   "We know of no rule of law requiring a cotenant out of possession to contribute for moneys paid in connection with the property by the cotenant in possession while during the very period for which the moneys were paid he asserted exclusive ownership in himself."

I'm sorry, but ALL case law would require a person who obtains a loan to pay according to his agreement. Your quote is not related to:

The boyfriend, as co-owner, is as responsible for making the loan payments as the GF, whether he is living in the home or not.

At all. Even if the person in the house got a shotgun without reason and illegally and without reason denied another the ability to come into the house or talk of the house or put another tenant in or whatever set of facts imagined, it would not affect the person who has the loan agreements responsibilities to the loan he obtained.

Your argument does not merit even the superficial response I put above. I think an attorney is necessary. If you put something like that out there in certain circumstances, you might get sanctions against you.

 

[tranquility]

The Court did not order GF to stay in the house. That was her choice, and that choice affected the ouster.

Again, clever argument. I would differ in that she was just living where she lives. I have not heard of a case that was successful with this argument. It would take skill to make it successfully.

You have the right to change the locks on your door. But if you exercise that choice in order to exclude a cotenant, that is ouster.

You did not mention changing the locks previously. That is more problematical. It certainly makes it more factual where, as before you lost as a matter of law.

The ouster also comes from the Civil Code 843 demand that was ignored. She should have agreed to sell or take in renters during the 60 day running of such a demand.

I would argue you are not out of possession and the statute does not apply.

The mortgage obligations only accrued because GF refused to sell, denying BF his equitable right to sell property he owned.

They accrued because you signed a contract with the lender.

A court cannot oust one cotenant in favor of another - to do so would violate either or both of the countracts clause or the takings clause of the constitution.

Yea, once you get to Constitutional law, you've lost without an attorney. Even then, you're talking years for a resolution. Besides, what did the court order say?

 

[tranquility]

Could you address the Civil Code 843 demand point, Estate of Hughes (1992)? I have noone with any experience here.

First line of the Opinion:

When Kathryn Marlow Hughes died on February 12, 1975, she and her husband,

Are you her husband?

 

[ProperProPer]

I'm sorry, but ALL case law would require a person who obtains a loan to pay according to his agreement...

The agreement to pay the bank loan is an enforceable deed of trust between the bank and the joint tenants of the house. That agreement has not been breached. The agreement does not include any provision on how the separate owners pay back the bank. Each owner is responsible for the full loan. THE BANK IS NOT PARTY TO THE LITIGATION.

The agreement between BF and GF was to share the house and expenses equally. GF breached that agreement, not BF. So again what case do you find relevant?

 

[Silverplum]

No case agrees with you. Again, I ask where is the case? BTW, the Court order never mentions the address of the home, just stay away from the GF, her place of residence and place of work.

You are deliberately obtuse.

Your argument really claims that a DV-RO can award punitive damages in the form of property entitlements, though this is not the intent of the order. To say so presents problems with equal protection and due process.

Could you address the Civil Code 843 demand point, Estate of Hughes (1992)? I have noone with any experience here.

Translation: None of the Free Advice people agree with me! *stamps foot*

 

[ProperProPer]

First line of the Opinion:

Are you her husband?

Quick on the draw eh? The Estate of Hughes is an action between unmarried persons if you read further. The import of the case lies in the interpretation of Civil Code 843, an esoteric provision to be sure.

GF forcing BF to continue owning prejudices him and is unfair to him. After all the right to property is also the right to sell property. Civil Code 843 is precisely the rescue in this case, or so I believe. GF should have agreed to sell, take in a renter, or to some other equitable remedy in the 60 day running of CC 843. Her failure to do so is conclusive of an ouster.

 

[Silverplum]

The agreement to pay the bank loan is an enforceable deed of trust between the bank and the joint tenants of the house. That agreement has not been breached. The agreement does not include any provision on how the separate owners pay back the bank. Each owner is responsible for the full loan. THE BANK IS NOT PARTY TO THE LITIGATION.

We know.

The agreement between BF and GF was to share the house and expenses equally. GF breached that agreement, not BF. So again what case do you find relevant?

Deliberately obtuse again. I suggest you re-read the correct advice you've already received.

 

[quincy]

I would claim he has not lost possession and would have no need to "recover" it. Ownership is many sticks. Some bundle of sticks leads to the jargon of "possession". He has certainly not lost all of the possession sticks. As to if he lost any of them is more problematical. I think not. But, it would depend on the specific order.

Sorry, tranquility. I was using the word possession in a sense that was bound to confuse in this discussion. I should have known better. I was using it merely to mean living in the house. I was not referring to ownership.

 

[ProperProPer]

Even if the person in the house got a shotgun without reason and illegally and without reason denied another the ability to come into the house or talk of the house or put another tenant in or whatever set of facts imagined, it would not affect the person who has the loan agreements responsibilities to the loan he obtained.

Would you agree that these acts would constitute an ouster under CA law? How then would you expect a court to rule when the ousted party claims entitlement to imputed rent and the ousting party claims entitlement to compensation for mortgage payments - all of which accrued during the pendency of partition litigation?

CA Civil Code 3521 "He who takes the benefit must bear the burden."

 

[Silverplum]

Would you agree that these acts would constitute an ouster under CA law? How then would you expect a court to rule when the ousted party claims entitlement to imputed rent and the ousting party claims entitlement to compensation for mortgage payments - all of which accrued during the pendency of partition litigation?

CA Civil Code 3521 "He who takes the benefit must bear the burden."

First: What don't you understand here? http://www.courts.ca.gov/1260.htm

 

[ProperProPer]

First: What don't you understand here? http://www.courts.ca.gov/1260.htm

Thanks for the notes, best of luck to you.

 

[TigerD]

If you have all the answers, why are you here?

Good bye and good luck - but mostly good bye.

TD