Break-up and settlement of house asset

[disenchanted]

What is the name of your state? California

Hello,

My ex-boyfriend and I purchased a condo in San Francisco in May 2004. We broke-up in February 2005, but have remained living together (in separate bedrooms) since then.

In general, we have been able to manage our separate relationships until now and have found the need to move on.

Here are some facts:
1. We are not and were never registered domestic partners.
2. I am the full title and mortgage holder for the condo.
3. Based on financial contributions to the house, I have an 80% equity share in the condo and my ex has the remaining 20%.
4. We do not have any legal documents that document my ex's interest in the property.

I would like to move down a path to resolve this topic as soon as possible and to be as fair as possible. However, my ex is wanting to drag his feet on this topic and possibly seeking to get a larger share in the property that he has contributed.

I would like to know what options I have available to me to expedite this process and what legal concerns I should be aware of.

Thanks for any pointers, recommendations to anyone in advance. If anyone knows of a good law firm in San Francisco that is experienced with such cases, I am also interested in hearing about them.

Thanks!
- dissolusioned and disenchanted

[Ohiogal]

Evict him -- he is a tenant and nothing more. What he paid was rent. You were not married and had no legal relationship. Your ex boyfriend did NOT purchase the condo -- you did and that is evidenced by you pulling the only one on the title and mortgage. He has no claim to any equity without a written contractto that effect.

[KParrish]

ohiogal said it best.. unless you are willing to pay him (out of your own pocket) what his *equity* may be in the condo, there is no being fair.. he doesn't have a legal foot to stand on, and nothing to help his case... best thing, is to have him move out.. and he will have to cut his loss's..

[BelizeBreeze]

Originally Posted by Ohiogal

Evict him -- he is a tenant and nothing more. What he paid was rent. You were not married and had no legal relationship. Your ex boyfriend did NOT purchase the condo -- you did and that is evidenced by you pulling the only one on the title and mortgage. He has no claim to any equity without a written contractto that effect.

WHOA NELLIE. THis is a California situation. And under the Marvin doctrine, while this may not be a Family Law matter, it DOES fit the Implied Contract statutes .

Nelson vs. Nevel (1984) 154 Cal.App.3d 132 [201 Cal.Rptr. 93]: A complaint filed by a woman against a man seeking to recover her share of certain real property acquired by the parties while they were living together, and which was held in the man's name, could be amended to state a cause of action based strictly in equity. She alleged that the man would be unjustly enriched if he was allowed to retain her interest in the property along with his own and requested that the court order an accounting and order the man to hold the property for her under a constructive trust. She was not required to allege a confidential or fiduciary relationship in order to sufficiently plead that form of relief. She could also request the court to find that a resulting trust arose in her favor. (Note 4-year statute of limitations applied per California Code of Procedure § 343).

Taylor vs. Fields (1986) 178 Cal.App.3d 653 [224 Cal.Rptr. 186]: Cohabitation is a "prerequisite" for recovery under a Marvin theory.

You need to sit down with a competent attorney for a full review of the facts and an opinion based on them.

[Ohiogal]

Originally Posted by BelizeBreeze

WHOA NELLIE. THis is a California situation. And under the Marvin doctrine, while this may not be a Family Law matter, it DOES fit the Implied Contract statutes .

Nelson vs. Nevel (1984) 154 Cal.App.3d 132 [201 Cal.Rptr. 93]: A complaint filed by a woman against a man seeking to recover her share of certain real property acquired by the parties while they were living together, and which was held in the man's name, could be amended to state a cause of action based strictly in equity. She alleged that the man would be unjustly enriched if he was allowed to retain her interest in the property along with his own and requested that the court order an accounting and order the man to hold the property for her under a constructive trust. She was not required to allege a confidential or fiduciary relationship in order to sufficiently plead that form of relief. She could also request the court to find that a resulting trust arose in her favor. (Note 4-year statute of limitations applied per California Code of Procedure § 343).

Taylor vs. Fields (1986) 178 Cal.App.3d 653 [224 Cal.Rptr. 186]: Cohabitation is a "prerequisite" for recovery under a Marvin theory.

You need to sit down with a competent attorney for a full review of the facts and an opinion based on them.

LOVE YOU BB and knew you would step in if I was wrong but I thought i was right! I hate California. hence why I practice in Ohio. Damnit damnit damnit. I am leaving California alone from now on. Them and Texas. (No offense to the guys and gals from those two states).

[BelizeBreeze]

Originally Posted by Ohiogal

LOVE YOU BB and knew you would step in if I was wrong but I thought i was right! I hate California. hence why I practice in Ohio. Damnit damnit damnit. I am leaving California alone from now on. Them and Texas. (No offense to the guys and gals from those two states).

Before he left, IAAL was a great souce for California Law. I am only regurgitating what I have learned from him and the links to case law he supplied to me.

[disenchanted]

... and thank-you to everyone else who provided inputs here.

I definitely am seeking council to ensure that I handle this process in the right way, and appreciate all the advice (and case precidents) that you have provided.

In terms of seeking legal council, would you recommend that I seek someone who is experienced with Real Estate or Family Law or a specific speciality or mix of any of the above?

[BelizeBreeze]

Originally Posted by disenchanted

... and thank-you to everyone else who provided inputs here.

I definitely am seeking council to ensure that I handle this process in the right way, and appreciate all the advice (and case precidents) that you have provided.

In terms of seeking legal council, would you recommend that I seek someone who is experienced with Real Estate or Family Law or a specific speciality or mix of any of the above?

Predicate your search on those who have sucessfully defended against a Marvin Proceeding.

[tranquility]

Even with the cites, I'd still do what Ohiogal suggested. Put the house up for sale and give him a 30 day notice to quit. He's the one who is going to have to take you to court to prove he has some rights in equity. And, the standard is clear and convincing evidence to overcome title. He said/she said won't be enough. See an attorney to make sure your bases are covered, absolutely. But, he is the one who has to take action to even have anything resembling a right and has a high burden even then. (With money up front for a maybe.) The OP has the power right now. She shouldn't let his intransigence slow things down.

In addition to statute of fraud issues, a couple of other cases off the same summary page the previous cites were from (I haven't read the cases themselves.):
Toney vs. Nolder (1985) 173 Cal.App.3d 791 [219 Cal.R6tr. 497]:There is no "confidential relationship" exception to the rule that an oral trust in derogation of title must be shown only by clear and convincing evidence. Thus, in an action for dissolution of a partnership, an accounting, and distribution of the proceeds, in which action plaintiff alleged that he and defendant (with whom he was romantically involved) had entered into an oral partnership agreement to buy a house and that defendant had taken title in her sole name to prevent plaintiff's ex-wife from executing on the property, the trial court erred in granting judgment for plaintiff based on such exception, where the court found that the existence of the oral partnership was supported only by a preponderance of the evidence.

Tannehill vs. Finch (1986) 188 Cal.App.3d 224, [232 Cal.Rptr. 749]: A Marvin action falls within the provisions of Evidence Code section 662, and thus, when title to property is involved, the plaintiff must prove her claims by clear and convincing evidence.

[BelizeBreeze]

I disagree with which party has the power in this situation. Although he may not know it, the poster's ex has more. He can simply file suit, stop the sale once it's begun and the poster is not only out funds to list the home, but is herself libel for suit from the buyer's and the representative listing firm.

Or, at least she would be were I sitting on the opposite side of the sale. She has specific knowledge of a problem and without full disclosure she runs the risk of tying up the property for more than a year.

[tranquility]

The ex has no power until he files suit or notice of suit. He cannot stop a sale without a court order. (I don't see the requirements for a TRO or preliminary injunction being met when the only basis is equity on the facts we have.) If a judge was to order the sale stopped, which I find unlikely, the seller would not have a liability to the buyer that I see. Shoulda, coulda, maybes are not "knowledge" no matter how thin you slice the baloney.

If the ex were to go through this, he darn well better win. Interference with business or contractual relations for sure, possibly an abuse of process depending on the claims. The damages could be significant in this market. The ex could be taking a big risk if he stirs things up. It wouldn't be one of the tap, tap, free suits if it doesn't work out.

Remember, the ex has no legal basis for a suit. He is only arguing equity. I see little or no chance to prove he is substantially likely to succeed on the merits without substantial discovery. The buyer is not going to win a suit against the OP. What is the cause of action? I think the ex's risk/reward calculation lends one to not try to stop the sale in any event. That does not mean he might not want to try to to sue for money from the sale someday. That has only the risk of attorney's fees. I don't think he would win unless he has some proof beyond regular checks to the OP, but who knows?

[ceara19]

Originally Posted by Ohiogal

LOVE YOU BB and knew you would step in if I was wrong but I thought i was right! I hate California. hence why I practice in Ohio. Damnit damnit damnit. I am leaving California alone from now on. Them and Texas. (No offense to the guys and gals from those two states).

You don't like the way our legislators write laws that are in direct contradiction of one another? Or is it just the way that the majority of our judges are not required to have ANY legal background before putting on their robe?

[Ohiogal]

Originally Posted by ceara19

You don't like the way our legislators write laws that are in direct contradiction of one another? Or is it just the way that the majority of our judges are not required to have ANY legal background before putting on their robe?

You all just have your own little world over there. It confounds me. And I don't think I be stupid. I mean really. And judges WITHOUT legal background? The ones with legal background sometimes make assinine legal errors -- I would hate to deal with ones without.

[ezmarelda]

Originally Posted by Ohiogal

You all just have your own little world over there. It confounds me. And I don't think I be stupid. I mean really. And judges WITHOUT legal background? The ones with legal background sometimes make assinine legal errors -- I would hate to deal with ones without.

I think I know more about Ca Family Law just from hangin' out here than most of the judges in my area ... ... ...although we do have one local Comishioner who is GOOD, I have seen him pi$$ off a room full of attorneys by continuing a case so that he could research before ruling

[ceara19]

Originally Posted by Ohiogal

You all just have your own little world over there. It confounds me. And I don't think I be stupid. I mean really. And judges WITHOUT legal background? The ones with legal background sometimes make assinine legal errors -- I would hate to deal with ones without.

Many Judges, including Family Court judges, are ELECTED. So in many of the smaller rural areas (which covers MOST of the state) it's a popularity contest. The Judge in my divorce didn't even have a college degree! Needless to say, we didn't exactly see eye to eye.