Partition Lawsuit Key to Divide Sale Proceeds

  Question: Five years ago, my husband and I purchased a house in the Arrowhead area for my daughter and her boyfriend. Although we transferred the title to their names, my husband and I are still on the mortgage. Her boyfriend is a classic “deadbeat,” and our daughter is tired of paying all of the bills. What does our daughter need to do to have her boyfriend’s name off the deed? Also, what does she have to do to get her boyfriend out of the house?

  Answer: First, to get her boyfriend’s name off the deed, your daughter should file a partition lawsuit. In a partition lawsuit, a special commissioner (usually a real-estate broker who is paid a real-estate commission) is appointed by the court to sell the home and divide the sale proceeds. These sale proceeds are divided only after payment of any mortgages and liens and costs of sale such as the commission and escrow fees.

  If your daughter has been “paying all of the bills,” your daughter should be able to prove in that partition lawsuit that she is entitled to more of the sales proceeds than her boyfriend. In general, as co-owners your daughter and her boyfriend have an equal right to possession of the house. Your daughter, however, still could get a court to order her boyfriend to move out of the house based on such factors as her payment of the mortgage, any threat of physical violence, or your daughter’s children living in the house.

  If your daughter were the only one on the deed, and her boyfriend were not on the deed, the boyfriend would be presumed under Arizona law to be a month-to-month tenant. Your daughter would then have only to give her boyfriend a 30-day notice to terminate this month-to-month tenancy. If her boyfriend did not move out of the house after 30 days, your daughter would be entitled to file an eviction lawsuit against her boyfriend.