My mom passed away and her will left her home to me, my sister and my sister's son (my nephew). My sister retired a year early to care for my mother at home and she passed away. The house is now deeded to me, my sister and my nephew. My nephew now wants $50,000 for his share. He says he will have his lawyer force the sale of the house. It's is on property appraiser valued at $123,964. However, my sister and myself have paid to completely refurbish the house inside and out and he contributed nothing. Can he force the house to be sold? My sister lives there on $1,000 a month and cannot afford to take a 2nd mortgage. I don't life there. House is homesteaded in her name.
Mr. Goethe lays out the basics quite well. And I concur with the above attorneys that a suit for partition is an expensive process. Further, in these market conditions it is highly unlikely that a forced sale will net much money, at all, and this is after all court costs, attorney fees, and existing mortgages are paid (you mention not wanting to take out a 2nd mortgage, so I'll presume there is a current mortgage in place). You nephew does not sound like he has actively researched this matter or consulted with his attorney.
There are a number of other things that could be strategically discussed, though I do not feel they are appropriate to mention in this forum. Feel free to contact me to set up a free consult.
The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change.
If the home is not located in Florida, please disregard my comments. I am only licensed in Florida and would not comment on situations in states where I am not licensed to practice.
The three of you appear to own the property as "tenants in common." This means you are each equally entitled to the use and profits from the property. You are also each entitled to share in the necessary expenses related to the property. It gets a little more complicated when one owner lives there. The owner in possession does not necessarily have to pay rent, unless they have prevented the others from having access.
In Florida, the laws allow for a partition action and the suit is initiated with the filing of a complaint, not a petition. A partition action would include a consideration of the value of the property, each owner's share, and possible adjustments for contributions by one or more of the owners which exceeds the share they should have paid. Voluntary improvements by one owner might not be reimburseable.
If the owners cannot work things out, a partition action could result in a public sale. Given Florida's current real estate market, that is likely to bring a price far below anyone's expectations. In addition, the attorney fees and court costs are paid from the sale proceeds before the owners receive thier share. Therefore, it is crucual that everyone involved be reasonable, each hiring their own attorney if neccessary, and work out a satisfactory result.
You should note that the property appraiser's web site is not a reliable indicator of the value of the property. Sometimes it is higher than current market conditions and sometimes it is lower. Also, the value is based upon the county property appraiser's opnion as of January 1st. As we all know, Florida real estate markets have fluctated drastically over a few month's time.
My comments are not intended to establish an attorney-client relationship, are not confidential, and are not intended to constitute legal advice. Proper legal advice can only be given by an attorney who agrees to represent you, who reviews the facts of your specific case, who does not have a conflict of interest preventing the representation, and who is licensed as an attorney in the state where the law applies.
Any joint owners of real property can file a 'petition to partition' in which the court adjudicates the respective rights of the parties. This is the equivalent of a property division in a divorce where the co owners are not married. The court looks at factors including contributions to the property, payments, sweat equity, and others. In a case like this involving a single family home the final order could award the property to one, with the debt or equity being split in accordance with a proportion the court finds "equitable", or the court could order a sale, with any sale proceeds or debt again split equitably.
I have done these. They take time and money. They can get somewhat complex and bogged down in procedural issues.
Therefore, it is recommended that you attempt a mediation or arbitration first.
This answer is provided for informational purposes only. Actual legal advice can only be provided in an office consultation by an attorney licensed in your jurisdiction, with experience in the area of law in which your concern lies.
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