How to Divide Property Between Family

The topic of how to divide property between family often comes up when family members own property together, and one member wants out. This most commonly occurs, in my experience, through the inheritance of property among siblings, after a parent dies.

The rule of thumb is that, in nearly every case, if an owner of property wants out, they are entitled to force a sale of the property. For this reason, when such a scenario comes up, it is best for those involved to try and resolve it on their own.

How to Divide Property Between Family: Working Out a Buy Out Or Sale Agreement

When the topic of dividing property comes up, the first thing to be done is try and see if the matter can be worked out amicably, by joint agreement.

When one co-owner of property wants out, there are generally two options available. First, the parties can negotiate a buy out of the owner’s share, where the other owners pay them for their share of the property. This is generally required when one of the co-owners wishes to keep the property, and the others do not.

If a buy out cannot be worked out, the other option is to simply agree to sell the property.

How to Divide Property Between Family: Partition

If an agreement among the property owners cannot be reach, any owner may file a partition case, where the court orders a sale of the property.

A partition case may be filed in either Land Court or Probate and Family Court. The process can be expensive, as the parties will generally need to pay attorney fees and court expenses. The filing of one of these cases, however, can be effective in moving one of these matters towards a final resolution.

Final Thoughts

If you need assistance with a property matter, contact me for a consultation.

Fixing a Real Estate Mistake in Massachusetts

Mistakes happen . . . especially in real estate. The legal options for fixing a real estate mistake vary based on the circumstances and the dispute that must be resolved.

Fortunately, Massachusetts law provides a number of causes of action for resolving these issues.

Getting Someone Off a Deed

When property is owned jointly by several owners, it is not uncommon for one owner to want own. If the parties cannot work it out on there are, there are several options available for such cases.

If someone is on a deed through a mutual mistake (where both parties erred in the drafting of the deed), fraud, accident, illegality, or unjust enrichment, a deed reformation may be a possibility. This is a court action asking for the removal of a party from the deed. Such a case, however, will only be available in these limited circumstances, and will generally not be viable if the other person was freely and willingly deeded the property.

In most other cases, the process of removing someone from a deed must be done through a partition case, which is a legal action to force a sale of property.

Discharging a Mortgage

When a mortgage is paid in full, a notice must be filed (“recorded”) in the land records stating that no further debt is owed on the property. Known as a mortgage discharge, this document is incredibly important for a later sale of the property.

Without a discharge, few (if any) prospective buyers will purchase a property, with the concern that a mortgage may still exist.

Massachusetts has a detailed procedure for fixing a real estate mistake such as this, including a court action ordering such a discharge.

Getting Rid of An Adverse Claim To One’s Property

An adverse claim to property occurs when a property owner’s neighbor or abutter claims they own a portion of someone else’s real estate. When this occurs, the goal is to get rid of such an adverse claim as quickly as possible.

One means of fixing a real estate mistake such as this is through try title. Try title requires that the other party, who is asserting a adverse claim, to either pursue the claim, or lose it forever.

Final Thoughts

Fixing real estate mistakes is not always easy, but can be done through the assistance of an experienced attorney. If you need help in such a matter, contact me for a consultation.

Dividing Property Through Partition: 3 Things to Know

Dividing property through partition is the legal process by which an owner of real property can force the sale of property owned with a co-owner. In Massachusetts, a partition case may be filed in Land Court or Probate and Family Court. In this post, I’ll discuss three things to know about this process.

Partition is An Absolute Right

Partition occurs when multiple persons own real property together, and one wants to sell. If the parties cannot agree to a sale of the property or buy-out of the individual owner’s share of the property, any party may file a case for partition.

In my experience, the most common case for partition occurs when property is owned among family members, such as a home that a set of siblings inherited from their parents. Married couples generally cannot divide property through a partition; such a matter is usually handled through a divorce.

Partition is a matter of absolute right. This means that, with few exceptions, any owner of property owned by multiple parties is entitled to divide the property.

A Court in a Partition Case Can Either Divide the Property or Order it By Sale

Dividing property through partition is done through one of two ways: (1) a physical division of property (“in kind”) or (2) by sale.

Courts prefer to physically divide property, if possible, to avoid a sale. This, however, is not possible in many cases, particularly for residential property in urban cities and towns. When this is not possible, the court will order the property for sale.

Most times, a court in partition will allow any of the parties who do not wish to sell the property to buy the other party’s share, to avoid having to do a full sale, commonly referred to as a “set off.”

Dividing Property Through Partition Is Expensive

One of the main functions of a court in a partition case is to determine who gets what from the sale of the property. The starting point is the ownership shares of each owner. If a brother and sister each own 50% of partition property, this will be the starting point for determining how much each gets from the sale.

While this is the starting point, it is not the end for determining each owner’s portion from sale. A court in a partition case determines the respective shares of each owner based on what is “just and equal.” This means that, if one owner has paid more of the required property expenses than another owner, the court can take this into account when determining the final distribution.

Dividing property through partition, however, is an expensive process. Attorney fees, court costs, and other required fees can add up quickly, and eat into the parties’ proceeds from the property.

For this reason, it is wise to try and avoid a partition altogether and reach an agreement for selling the property without court involvement.

Conclusion

As an experienced real estate attorney, I’ve helped many Massachusetts property owners resolve their legal disputes promptly and affordably. If you are involved in a dispute regarding the division of property, contact me for a consultation.

Forced Sale of a Home – Understanding Massachusetts Partition Cases

Real estate is commonly owned by multiple persons.  It is not unusual for married couples, family members, and even friends to own real estate together, and share in the responsibilities and upkeep of the property.  When everyone is fine with owning the home together, no problems exist.  It becomes more difficult when one or more owners of the property wants out.  When this happens, a property owner can begin a court action for a forced sale of a home, known as partition.  While this post is aimed at multiple owners of a residential home, the same type of relief is available for all types of jointly owned real estate.

What is Partition?

Partition is a court case to divide jointly owned property.  A partition case may be heard in Land Court (most common) or Probate and Family Court.  Partition, importantly, is an absolute right of any property owner: if one owner wants to do a forced sale of a home, they can do so.

The Court will first determine the best way to divide the property, either through partition in kind or partition by sale.  A partition in kind is the physical division of property.  If the court can simply “split the baby” and give each owner a share of the property, this is the preferred outcome.  Most of the time, particularly with single residential homes, this is not a realistic possibility.  The other, and more common, form of partition is a partition by sale: the court orders that the home is sold, and proceeds divided among the owners.

Who Gets What?

A central job of the court in a forced sale of a home is determining who gets what.  A court will not merely allocate the proceeds from a home sale simply based on each party’s ownership of the property.  The court will consider whether one party contributed a greater share towards the initial purchase of the home and whether one owner made permanent improvements to the property.  The court will also consider whether one party was responsible for paying the property taxes, insurance, and other expenses responsible with property ownership.

How to Succeed With a Forced Sale of a Home

The best way to succeed with the forced sale of a home is to try and prevent one of these cases from happening in the first place.  A partition case often results in the owners getting much less than they would if they simply agreed to sell it on their own.  Joint property owners can negotiate to “buy out” the other owner’s share of the home, or simply agree on a sale price for the property.  An experienced attorney can help you determine if this is a possibility or, alternatively, help you succeed in a partition case.