[WSBARP] encumbering a partial interest.

[Eric Nelsen]

Cummings v. Anderson, 94 Wn.2d 135, 614 P.2d 1283 (1980);  Iredell v. Iredell, 49 Wn.2d 627, 631 305 P.2d 805 (1957).  When the initial presumption is rebutted by evidence of unequal contributions, a presumption arises that ownership is held in proportion to contributions made by the parties: “Property acquired with contributions from both parties is held as tenants in common, and courts will presume they intended to share the property, in proportion to the amount contributed, where it can be traced, otherwise they share it equally.”  West v. Knowles, 50 Wn.2d 311, 313, 311 P.2d 689 (1957).

I agree that girlfriend can still argue that the unequal contribution was a gift to her, but it’s her burden of production/proof to show it was a gift, and if her only evidence is oral testimony of conversations or transactions with her boyfriend, that evidence is barred by dead man’s statute.

If she can prove a committed intimate relationship instead of “mere” boyfriend/girlfriend, there is theoretically more room to argue for an equitable split that doesn’t match the financial contributions. But in general, whether it’s partition or CIR, the court has broad discretion in equity to fashion a remedy that seems fair.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Paul Neumiller
Sent: Friday, July 7, 2023 2:11 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] encumbering a partial interest.

“might be possible for the tenants to rebut the presumption of equal ownership by evidence of unequal contributions to the purchase and maintenance of the property”

Where can I find this law?  Way outa my wheelhouse but:  Boyfriend and Girlfriend buy a house in 2021 and are both on the deed without identifying percentages.  Boyfriend pays for the full downpayment and other charges with money he inherited.  Now, boyfriend dies (intestate of course) and his estate clams a larger portion of interest in the house than Girlfriend’s interest based on the unequal contributions towards the purchase price.   Is this correct?  Can’t girlfriend argue that the unequal contribution for the house by Boyfriend was a gift?

Extra credit:  Boyfriend and Girlfriend both signed a deed of trust on the house.  Boyfriend’s estate wants to sell the house but take the loan payment out of the sale of proceeds 50/50.  It seems to me that if the Boyfriend’s estate is going to argue that estate owns a greater interest in the house than Girlfriend, then Boyfriend’s estate should be responsible for a greater portion paying off the deed of trust.  Any law out there to support this?


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From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>> On Behalf Of Eric Nelsen
Sent: Friday, July 7, 2023 1:29 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] encumbering a partial interest.

Agree with Kelby, though I think it might be possible for the tenants to rebut the presumption of equal ownership by evidence of unequal contributions to the purchase and maintenance of the property—which as a result would mean that the mortgage holder’s security could be on even less than 25% of the property.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>> On Behalf Of Kelby Derenick
Sent: Friday, July 7, 2023 1:08 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] encumbering a partial interest.

I believe that if the deed language is silent on the character then it is a TIC by default split equally between the individuals on the deed.  So it would be 25% each and each owner would have had to sign the deed of trust/note to encumber that owner's respective interest.

Kelby J. Derenick
Attorney

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Marysville, WA 98270
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On Fri, Jul 7, 2023 at 1:04 PM Eric Nelsen <eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>> wrote:
You are correct: Chucklehead only burdened his own interest in the property. If all four names are on title, I don’t see any viable theory that would allow C’s signature on a deed of trust to also encumber the other three owners’ interests.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>> On Behalf Of Craig Gourley
Sent: Friday, July 7, 2023 12:50 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: [WSBARP] encumbering a partial interest.

Listmates,  I think I know the common sense answer to this question but I have little faith that common sense applies to most legal matters.    Facts-  4 people own a home together.  Their names are all on the title with no indication of percentage or characterization ( JT or TIC or ?).  One chucklehead goes and gets a loan without the knowledge or consent of the other 3 and gives a DOT against the property.   Chucklehead then dies and loan goes into default.  Lender is now foreclosing.  The question is this.  Did Chucklehead only encumber an undivided 25% intertest or is there some legal theory that he was able to unilaterally grant a security interest in the entire property to the lender?  Thanks much to anyone still in the office on a sunny Friday.

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