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Thomas McJD
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Experience:  Real Estate Attorney
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If a house is co-owned by two siblings (inherited house) and

Resolved Question:

If a house is co-owned by two siblings (inherited house) and one files a motion to partition, what rights does the remaining sibling have if he is interested in buying out the other party but does not want to be subject to unreasonable demands?

A court ordered sale of the property would net each party approximately 93 cents on the dollar, after broker fees and closing costs are paid. If there are no other bidders other than the remaining sibling, can the departing sibling be compelled to accept 96 cents on the dollar as the best offer? Or does the departing sibling always get 100% of appraised value?
Submitted: 7 years ago.
Category: Real Estate Law
Expert:  Thomas McJD replied 7 years ago.
If you are the high bidder at a sale that has been advertised by publication or other rules for partition by sale, then you are the high bidder and can purchase the property, assuming all other conditions of the law are met. You shouldn't have to pay more than a third party would be willing to pay and are not required to.
Customer: replied 7 years ago.

Thanks for the great answer -- one that I will be very happy to pay (you were more informative than my mother's estate lawyer!)


I am very content owning one half of the house (without mortgage) and if I am to buy the other half, would like to keep costs reasonable. It sounds like my sister should accept my offer of around 96%, depending on inspection results and other factors. I don't think many people are willing to bid on half a house, not knowing the other co-owner. It was my divorced mother's house. I have a half brother on my father's side who could be interested (remotely), but I get along great with him and would welcome his bid for the other half. Can the judge or my departing sibling take any other action other than an auction for sale, that would be adverse to my interests? My mother's estate lawyer seemed to imply that the judge could set the price at 100 % of apprased value and that my only powers would be to decline and be forced to sell. Oh perhaps, I mistook what you said, is the auction for my sister's half, or the whole house, even though I own half and want to keep it? By the way, the house is successfully fixed up and rented out.

Expert:  Thomas McJD replied 7 years ago.

the auction is for the whole house -- there are two types of partition. Partition in kind and partition by sale.


partition in kind comes into play when a family owns a farm, for example. One might want a certain 40 and another owner might want a separate 40 but they don't want to co-own any longer. If someone is a holdout, then you might go to court and be forced to partition the whole part of land into smaller bits, each bit owned by a previous coowner of the whole.


With a home and many other types of properties, you can't say that's only your half and this is only mine. You half to sale the property and split the proceeds. So, the auction would be for the whole property. Generally statute specifies that the home must bring at least x% of the appraised value at the sale. Your attorney would have that specific information. Anyway, if you were the high bidder, and assuming you are within that required percentage range, if any, you just bought the house. You, of course, don't have to pay yourself anything, so you ultimately would pay 1/2 the purchase price to your brother and the house would be yours.

Customer: replied 7 years ago.

Thanks again. While waiting I got some Wikipidia info on partitions. Other than partition by sale, it mentioned partition by allotment (in some jurisdictions). This is perhaps what my mother's estate lawyer was talking about. The judge awards me 100% ownership on the condition that I pay off the departing party. It seems like protocol for this is that the price would be what would occur on the open market (93% of appraised value going to the owner) , but maybe the judge just says pay 100% of appraised value. I guess if it gets to that, I could decline and try my hand at open bid process. A house occupied by renters may draw less interest. You would have to evict to move in.


Of course, markets, times and house interest varies. Do you know anything about how well advertised and heated a partition by sale auction generally is? I understand you have no crystal ball here, but still probably know more than me.


The jurisdiction is Contra Cost County (near SF) if you know anything about that area

Expert:  Thomas McJD replied 7 years ago.
they're usually not well advertised.
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