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Division of Property based on title held in joint tenancy
Dear Steve:
Trustee is right. . . but it is a rebuttable presumption which can be over
come by CLEAR AND CONVINCING EVIDENCE. . . . If all the joint tenants
declare and they each put 50/50 towards purchase and expenses and if they
both live there. . . .
Civil Code
or more
persons in equal shares
Evidence Code section 662 which states that the owner of the legal title to
property is presumed to be the owner of the full beneficial title and that
the presumption may be rebutted only by clear and convincing proof. Proof
that is clear and convincing constitutes evidence that is explicit and
unequivocal that beneficial title transferred to a person or entity other
than those named in the deed, or that title is transferred at a point in
time distinct from the date of delivery of the deed. (1 Witkin, California
Evidence, 3rd Ed. 1986, Sec. 160.)In overcoming this presumption,
consideration may be give to, but not limited to, the following factors:
(1) The existence of a written document executed prior to or at the time of
the conveyance in which all parties agree that one or more of the parties
do not have equitable ownership interests.
(2) The monetary contribution of each party.
The best evidence of the existence of any factor shall be an adjudication
of the existence of the factor reflected in a final judicial finding,
order, or judgment. Proof may also be made by declarations under penalty of
perjury (or affidavits) accompanied by such written evidence as may
reasonably be available, such as written agreements, canceled checks,
insurance policies, and tax returns.
R. Grace Rodriguez, Esq.
Full service Real Estate
Attorney
California State Bar Certified Bankruptcy Specialist
OFF: (818) 734-7223
CEL: (818) 554-9922
Dear Steve:Trustee is right. . . but it is a rebuttable presumption which can be over come by CLEAR AND CONVINCING EVIDENCE. . . . If all the joint tenants declare and they each put 50/50 towards purchase and expenses and if they both live there. . . .
The post was migrated from Yahoo.
Real property question:
Chapter 7 case: Debtor and his wife hold one real property with each other and a cousin.
Trustee says that because there are 3 people on title, even though joint tenancy is undivided, for bankruptcy purposes they will deem the property owned 2/3 by the Debtor and wife and 1/3 by the cousin.
They went into the purchase of the property together and each put down 50%.
Does the title really make a presumption of 2/3 and 1/3? My presumption is it's undivided and the intention of the parties rules as to the equitable ownership.
Steve
Law Offices of Steven B. Lever
Steven B. Lever
* Tel. (562) 436-5456 ext. 1
* Fax (562) 485-6886
* sblever@leverlaw.com
www.leverlaw.com
Real property question:
Chapter 7 case: Debtor and his wife hold one real property with each other and a cousin.
Trustee says that because there are 3 people on title, even though joint tenancy is undivided, for bankruptcy purposes they will deem the property owned 2/3 by the Debtor
and wife and 1/3 by the cousin.
They went into the purchase of the property together and each put down 50%.
Does the title really make a presumption of 2/3 and 1/3? My presumption is it’s undivided and the intention of the parties rules as to the equitable ownership.
Steve
Law Offices of Steven B. Lever
Steven B. Lever
(
Tel. (562) 436-5456 ext. 1
(
Fax (562) 485-6886
*
sblever@leverlaw.com
www.leverlaw.com
The post was migrated from Yahoo.