Partition Action

[jsarniejr]

Massachusetts . My Dad passed away and left My sister ,Myself and my brother a home with no mortgage . My brother and I own our own houses so we decided(unofficially) to let our sister stay there as long as she paid the property taxes. which she has. She's been there 10 months as of this writing . My brother and I both have sons who will be attending medical school and we would like our share of the house's value. I know we can file a Partition action. My question is, Does my sister have any grounds to prevent a Judge from ordering us paid ? We don't want her to have to leave ,But would like her to secure a mortgage to pay us off.? Any replies would be appreciated. Thank You

 

[tranquility]

A partition action tends to not be hard in dealing with breaking up of the group ownership, it tends to be hard in allocating what each person deserves. (Although the recency of the tenancy in this case may make things a bit easier.) It would be FAR better to deal with sister and try to strike a deal before resorting to legal measures. Far better. Once everyone lawyers up, you have a family divided and money flowing like water out the door.

 

[jsarniejr]

Thank you. sis claims she can't (we feel doesn't want to ) get a mortgage I guess my follow up question would be.If we were to let her stay there 5 years paying the taxes(although we don't charge her rent or anything) ,Would there or could there be a different view by the court? if it came to that ? John

 

[FarmerJ]

has the house gone thru probate and title is now in the 3 names ? if it is then is there a reason she wont enter into a written recorded contract with the two of you for your shares of ownership ( sort of like a contract for deed ? talk to a attorney )

 

[jsarniejr]

....What had happened ( not to complicate the issue) we went to the reading of the will and my dad had in his will that my sister could live in the house as long as she could afford the associated costs,but according to my dads attorney he had legally given the house to the 3 of us 5 years earlier than his will which means he didn't have the right to put any conditions on the house because it in actuality wasn't his ? Does this make sense ?

 

[LdiJ]

....What had happened ( not to complicate the issue) we went to the reading of the will and my dad had in his will that my sister could live in the house as long as she could afford the associated costs,but according to my dads attorney he had legally given the house to the 3 of us 5 years earlier than his will which means he didn't have the right to put any conditions on the house because it in actuality wasn't his ? Does this make sense ?

I don't understand why parents do that. I am sure that he was trying to save you the hassle of probate, but what he did was actually cost you a significant chunk of money. When you inherit property you get a stepped up basis to FMV as of the date of death. Therefore, you can sell the home with little to no capital gain. However, by gifting you the property prior to passing away, your basis is now his original basis (what he originally paid for the home plus major improvements) and you will pay capital gains tax on the difference.

However, depending on how long your sister has been living in the home (she has to live there two full years) then she probably won't have to pay any capital gains tax because it has been her primary residence. Its possible that your sister cannot qualify for a mortgage, and its obvious that your father's intent was for her to be able to live in the home. I would strongly echo the advice that you have already received. You will just be throwing money away if you file a partition suit, so really coming to some sort of an agreement with your sister is the far better way to go.

 

[tranquility]

Thank you. sis claims she can't (we feel doesn't want to ) get a mortgage I guess my follow up question would be.If we were to let her stay there 5 years paying the taxes(although we don't charge her rent or anything) ,Would there or could there be a different view by the court? if it came to that ? John

An owner has the right of possession. You cannot charge her rent. Her paying of taxes, may give her some rights of reimbursement from any partition action for the portion of the taxes that were not her share.

I might write up a contract saying you forgo your right to partition for such and such years in exchange for sister to keep up the house to the standard it is now and pay for all taxes and insurance etc. (Have an attorney draw up the contract.) This will protect your ownership rights and embody the fact you are giving up something for the money she puts into the residence.

But, perhaps you can buy her portion--giving her enough to live somewhere else. Then, you can sell the house yourself. In other words, can YOU get a mortgage?

 

[latigo]

Massachusetts . My Dad passed away and left My sister ,Myself and my brother a home with no mortgage . . . .

....What had happened ( not to complicate the issue) we went to the reading of the will and my dad had in his will that my sister could live in the house as long as she could afford the associated costs, but according to my dads attorney he had legally given the house to the 3 of us 5 years earlier than his will which means he didn't have the right to put any conditions on the house because it in actuality wasn't his ? Does this make sense ?

No it does not make a lot of sense when in one breathe to declare that the home was distributed in co-tenancy through probate of a will and in another that the property was deeded inter vivos!

You seem fully aware that either co-tenant can petition for partition that would result in the home being sold. In which case the answer to your specific question of whether or not sister would have legal grounds to object and prevent such is negative. The right of one or more co-owners to force partition is indefensible.

Whether or not sister can qualify to obtain a mortgage loan or whether she is inclined to do so are questions beyond resolution here. But it seems to me that you and your brother are being hesitant just to accommodate her desire to remain in the home. If that attitude of deference continues, nothing will be accomplished.

My advise is that you take a firm line with her letting her know that if the issue is forced she will eventually be compelled to either purchase your interests by means of a mortgage loan or see the home sold at a public auction.