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Determining Home Ownership

Ask the Real Estate Lawyer: Real Estate Law Q&A

REM #LAW622

By Ilyce R. Glink and Samuel J. Tamkin

Summary: A reader has paid off the loan on a home they intitally bought with another person, but has been the primary owner for fifteen years. The reader is wondering how to get the original partner off of the deed. Sam and Ilyce suggest going to court to file a suit for partition.

Q: I purchased a home with another person about fifteen years ago. That person left a couple of years later leaving me with all of the expenses to the home. He has never come back and has never had anything to do with the home or me since. I have now paid the loan of the house off.
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What rights are there to get this person off the deed to this property? Someone told me I could use the statute of limitations after 15 years, is that true?

A: I hope you've kept good records. If you were not married to your co-owner and you owned the home jointly with him, or you both owned it equally (as tenants in common each with fifty percent ownership), you will have to go to court and file what is called a suit for partition.

Basically, you will plead with the court that all of the expenses in the home since your co-owner left you that should have been paid by him are enough or more than the value of your co-owner's share of the home.

To determine what the value of the home is, you will have to obtain an appraisal that is acceptable to the court. If what you have put into the home on behalf of your co-owner is more than the value of his share of the home, you will have a claim against the co-owner's interest in the home that exceeds his value in the home.

The court probably won't convey title to you, but, rather, will require that the co-owner's interest in the home be sold at either an auction or by other means. Upon the sale, any proceeds from the sale could be used to satisfy what he owed you. More importantly, you want the court to allow you to bid what your co-owner owed you towards the value of the home. If you bid what he owes you, you should then get the entire title to the home in your name.

Since each of you should have been paying one half of all of the expenses for the real estate taxes and capital improvements to the home, good record keeping is a must. You will also have to have a paper trail to prove all of your payments. A court may not allow you to claim the basic expenses of the home, such as the utility expenses and day-to-day costs, but major repairs, real estate taxes, the insurance for the home and the mortgage payments should be considered.

Was this property an income-producing property at one point? If the home was rented and you received the rental income, the money you received would offset some of the expenses you could otherwise claim he should have paid.

While it won't be easy to figure out your share and what would have been your co-owner's share of the expense, you must try to do it. Your co-owner should have been paying for half of these many expenses since he left and didn't. Your state may have other laws that would allow you to claim the home outright.

Unfortunately, if the value of the home has increased significantly, the expenses paid may not be enough to eliminate your co-owner's interest. While you should talk to a real estate attorney, I would suggest that you talk to one that has had experience in at least a couple of partition suits in the last couple of years. These types of suits are not too common and you need to have an attorney that has had experience with them.

One final thought: if your co-owner has died, whatever interest he had in the home would transfer to those people designated in his will or as required under state law. You may want to determine if he is still alive or, if he has passed on, figure out who inherited his share of the home.

You may be able to offer them a small amount of money to have them deed to you his interest in the home. Remember that a partition suit will cost a sizeable amount of money, and if you can buy out your partner's interest quickly, that may be the best option.

Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce R. Glink’s latest book is 50 Simple Steps You Can Take To Sell Your Home Faster and For More Money In Any Market. If you have questions for them, write: Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022 or contact them through Ilyce’s website www.thinkglink.com