No simple answers to resolve family dispute over quitclaim deed

Real Estate Matters

November 16, 2008|By ILYCE GLINK

My siblings and I received property from our mother through a quitclaim deed. She has since died. The property is in West Virginia and we live in Ohio. The deed was not signed by us and was never recorded through the courts.

Is this quitclaim deed valid? If it is, which state law has precedence, West Virginia, where the property is and where my mother lived, or Ohio? Our brother passed away two years ago, and his wife claims that she inherited his 1/7 ownership of the property. She does not want to relinquish rights, and we are looking for a loophole.

From your question, you seem to imply that your sister-in-law has a claim to the property if the quitclaim deed is valid, but that if the quitclaim deed is not valid she might be out of luck.

It's unfortunate that you feel the need to find a "loophole" to deprive your sister-in-law of her share of the property.

I guess you need to see what your mother's intent was when she gave all of you the property and signed the quitclaim deed. If her intent was to give each of her kids a piece of her property, and now due to terrible circumstances one of your brothers has died, his wife would probably be entitled to his share.

You might be right that there is a loophole for you to use. But you'll need to consult with a real estate attorney in West Virginia to determine if a quitclaim deed that was unrecorded during the lifetime of the grantor is still valid.

In some states, if a deed is not recorded promptly after delivery to the recipient, that deed can be presumed to be invalid, or other people who claim an interest in the home may trump the ownership interest of the people named on the deed.

Many people don't realize that a properly prepared and delivered quitclaim deed will transfer the ownership of a home even if the deed isn't recorded. The key, however, is that some jurisdictions penalize the party that fails to record the deed. Furthermore, if the deed was prepared and signed but never delivered to the intended recipients, you might be able to claim it is invalid; your case is even better if your mother never signed the necessary documentation.

When your mom died, her will would have dictated who received what share of her assets. If she left all of her assets in her will to her children equally, then your late brother would have received a share - and it's likely that his wife, or at least his and his wife's children, would have inherited his share of the property after his death.

If your mom died without a will, the laws of the state in which she died would determine who received what assets.

I'm sorry, but there is no simple answer to your question.

You'll need to do some additional research on the title to your mom's home to see if anything changed on the status of the probate of your mom's will, and on the status of the quitclaim deed.

During the course of our marriage, my ex-husband and I purchased a home and later took out a second mortgage on the house.

In the divorce agreement, I was awarded the house and have subsequently been making the regular monthly payments on the primary mortgage.

As the second mortgage was used to pay off items that were mostly in his name, he agreed to pay the second mortgage upon separation, but that was not specifically named in the divorce agreement. For almost four years, he has been making the monthly payments. However, a few months ago, he decided to stop making payments and defaulted on the loan.

My co-workers said that, should he or I neglect to pay this loan, the company would place a lien against the house that would have to be paid at the time of sale. Is there any other recourse that I have in this situation?

Also, I intend to sell the house in the next two years. Can I still sell the house without paying off the loan? Can I still be sued for the amount of the loan at a later time?

I don't know where you live, but your co-workers are misinformed about at least one thing: The second lender could force you into foreclosure if it wanted.

More likely, the second lender already has a lien against your home. When you took out the second mortgage, that second mortgage is a lien on the home. When this house sells, you will not get any proceeds until both of your lenders have been paid off.

You and your divorce lawyer appear to have made a serious mistake by not having the loans specifically named in your divorce agreement.

But beyond that, if you are a co-signer of the second mortgage, you are responsible for that loan, even if your husband used the proceeds to settle his own debts.

Had you named the loan and responsible party in your divorce agreement, you would possibly be in the same place, but you might also have had legal standing to go back to court to force the issue.

Is your ex-husband still listed on the property as an owner? Is he listed on both mortgages as an owner? If so, then he has killed your credit as he has killed his own - probably a small comfort. Hopefully, your ex-husband has given up any legal interest he had in the house.

If you can't afford to pay the second mortgage bill, you have a few choices: You can ask the lender to renegotiate the terms of the payment. You can engage in free budgeting services from a reputable credit counseling agency. Or you can get a second job.

You can also go back to the divorce attorney who assisted you and determine whether you can reopen the divorce proceeding to add a provision to the divorce decree that would make your former husband responsible for the second mortgage.

Baltimore Sun Articles
|
|
|
Please note the green-lined linked article text has been applied commercially without any involvement from our newsroom editors, reporters or any other editorial staff.