SELLING THE FAMILY HOME
There are many properties for which families have lived in the homes for generations. Single family homes, multi-family homes may all be occupied by extended family members for many years. Siblings may live in separate apartments and all contribute to paying a mortgage, real estate taxes, water bills, maintenance and upkeep etc.
Family members die over the years and perhaps no probates were ever filed because there did not appear to be a reason for a probate filing at the time of death. However, frequently, family members learn of issues relative to the family home when the time arrives to sell or refinance the property. This article will address some common scenarios.
A multi-unit property was owned by five siblings who had all died and some siblings left surviving children and some did not. The property was vacant and falling into disrepair but had a large fair market value for any investor as it was located in a desirable location. When some of the family members were interested in selling, they retained my services and I had a title examination conducted. That title examination revealed that the property was in the names of the grandfather and grandmother who were long since deceased. These grandparents left five children, some of whom were alive and some of whom were deceased. As the property was in the names of the deceased grandparents, multiple probates needed to be filed appointing family members as personal representatives of the various estates. Additionally, since none of the family members had Wills, we needed to file additional petitions with the court to obtain a license to sell the property and then close out the estates and disburse the net funds to the heirs. As you can imagine, these proceedings took an extensive time to complete (over a year) and cost large sums of money paid by from the estates. If you believe you live in a family property such as this property, you should contact Attorney Deborah Gold-Alexander to determine the status of the property if you are considering selling it in the near future.
In yet another case, a two family was owned by an elderly woman who had three adult children. One child lived in one apartment with her children and one child lived in the other apartment with the elderly mother. The mother died and the children could not afford to maintain and pay for the house. Additionally, the third child did not even live there and wanted the house sold. A probate was filed for the mother by the third child without an attorney. There were difficulties with the filing which caused delays. During the filing, the third child who sought appointment as the Personal Representative of the estate also died. A new person had to amend the original filing of the mother’s estate and seek to be the Personal Representative of her estate. And now a probate had to be filed for the deceased sibling.
Had the property been conveyed into a trust, then a trustee would control the trust property and sell it. If any trustee died, a new trustee could have been appointed. There are a number of ways to minimize problems with property ownership especially property owned by multiple family members. If you would like to explore options with respect to the ownership of your property, you should contact Attorney Deborah Gold-Alexander.
Sometimes homeowners may own their properties for many, many years and then consider to sell the property. Maybe the homeowner may have refinanced their property over the years. However, when a property is sold, the buyer’s attorney or closing attorney will cause a full title examination to be conducted and this can reveal title issues that must be fixed to sell the property to the buyer with a clear and good and marketable title. In one case, it was discovered that an owner, who had bought their property 25 years earlier, had a property that was held in two separate deeds. One deed was for the main house lot and one deed was for a small strip of land of a driveway. For whatever reason, the attorney representing the buyer at that time 25 years earlier, failed to see that the property was made up of two separate deeds. This has presented many issues. The original owner recently died so the homeowner had to deal with his estate. The homeowner also has a claim for adverse possession of that driveway area as they have used that driveway area for their own, have paved it and kept it fenced in for 25 years. Adverse possession is a claim for land where a person has used a portion of a property (that he does not own by deed) for over 20 years and the use was open for all to see and adverse to the person who owned the property. To make a claim for Adverse Possession one must file a court proceeding to legally acquire that property, a judgment must be obtained and recorded at the Registry of Deeds. If you suspect that you may have an Adverse Possession claim, it is recommended that you have a full survey done by a qualified land surveyor. You should consider contacting Attorney Deborah Gold-Alexander if you think you may have such a claim.
Sometimes an Adverse Possession claim can be brought against you by a neighbor. A neighbor claims that they have used a portion of property for a driveway or a garden for over twenty years and you never objected to that use. If that should occur, you should definitely retain an attorney to defend your property rights. Just because someone files such claim does not mean that they would be successful in that claim. You could lose valuable parts of your property if you do not defend such a claim. You should consider contacting Attorney Deborah Gold-Alexander if you receive notice of such a claim by an abutting neighbor.
In another case, a property was owned by one family for 100+ years. However, when it came time to sell the property, it turned out that the property was comprised of two deeds that dated back to 1911 and 1913. Back then, the property was just land and the original owner bought one lot in 1911, then the second lot in 1913 and built a house that was on both lots of the two deeds. The deed on one lot clearly went to the current property owner’s family but for whatever reason, the second deed went to that same original owner’s family but included another family member from a second family. That second family had never been involved with or lived at the property during the entire 100+ years. The first family lived in the property, paid the taxes, insurance, took care of the property and made improvements. An Adverse Possession case had to be filed in court to determine the rights of the first family who had always paid for and lived at the property. A couple of family members from the second family came forward to contest the case but in the end, we were able to settle the case with those individuals and obtain a judgment of Adverse Possession in favor of my client. Subsequently, my client was able to sell her property with no title issue.
This article is to alert you to the potential problems that can arise when property is owned by a family for a long period of time and then the owners want to sell. Many times I will receive calls from potential clients who inform me that the property is “all set”, when nothing could be farther from the truth. And the longer that people wait to determine if they are “all set”, this can pose more problems because family members may die or become disabled or incompetent to sign legal documents to correct any issues.
Getting your personal matters relative to real estate in order is highly recommended. If you desire to make sure that your affairs are in order so you are not leaving problems for your children or other family members, then you should be having an attorney become involved with your property sooner than later. Many times, sellers move forward with a sale and just prior to a closing, an issue arises as discussed in this article. The sale must terminate for the seller in order to have the problem fixed. Determining if any problems may exist with a property long held by the same family should be a prudent route to take. Contacting Attorney Deborah Gold-Alexander to obtain such a determination should be considered by you.