Right to Partition As Tenant-In-Common

Question: My boyfriend and I bought a home together in Flagstaff five years ago. We agreed that my boyfriend would be the only person on the deed and the mortgage loan because of my poor credit. I paid $10,000 of the $20,000 down payment. Similarly, in the past five years we have paid all mortgage and other home expenses 50-50. I am moving out of our home now to go back to my family in Missouri. My “loser” boyfriend says that, because I was not on the deed and had no liability for the mortgage, I was only a tenant and he owes me nothing. Is he correct?

Answer: No. If you have proof that you were 50-50 on the $20,000 down payment and all expenses, including mortgage payments and repairs for the last five years, you are probably now 50-50 tenants-in-common. Therefore, you are entitled now to file a partition lawsuit. The Court would appoint a Special Commissioner, usually a real estate broker, to sell the home. After the sale of the home, the Special Commissioner would deposit with the Superior Court the sale proceeds minus broker commissions, repairs to the home, and other expenses of the sale. You and your boyfriend then would have to agree on a division of the sale proceeds, e.g., you might just want 45%, not 50%, just to go on with your life in Missouri. If there is no agreement, there will have to be a trial.

Note: Although the lawsuit is called a partition lawsuit, there is rarely a physical “partition” of the home or other real property when ownership interests are in dispute. An example of an actual partition could be 100 acres of farm land that could physically be split into two 50-acre parcels of equal value.

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