Contract Law: My brother and I co-own a house. We don’t get along. I agree to sell the house IF he won’t ever buy it back.
I’d agree to sell our co-owned house IF my brother agrees not to buy back the house. He agrees. Can we write that clause into a legally binding contract and what sort of remedy can I get if my brother defaults and buys back this house someday? Can I write in the contract that if he buys back the house he has to give me back my 50% co-ownership share in it? Would court uphold that remedy? We will hire a lawyer IF this can be done in a contract.
Someday? Are you talking about forever having this caveat? I understand that emotions are likely involved here, but emotions usually do not form the basis of enforceable agreements. If you both agree to sell, then neither of you should care what happens in the future. I would doubt that this agreement, especially forcing the co-ownership part, would be enforceable. I think your only related option is to sell it to a third party with a right of first refusal built into the deed, running to both of you that either could exercise, but by law that right would expire in 30 years if not exercised. And the existence of the right might scare away a buyer, who may not want to have to deal with it in the future.
You don't have the choice, in my view, only to agree to sell with this proposed condition. If you are co-owners, who I assume gained title together thru inheritance, if your brother wants out of the co-ownership, he can force a sale through a partition case in court. If such a case were to go the distance, the court will order a sale and take full charge of the sale, and you two will pay two commissions - one to the court's commissioner who supervises the sale and the other to the realtor that commissioner will hire. You'll both lose money.
Your realistic options are as follows: 1) bury the hatchet and continue to co-own, 2) agree to sell and divide the proceeds with no strings attached, 3) agree for one of you to buy out the other, thus one of you keeping the property.
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Asker
We ARE co-owners now, so not sure what you mean by “forcing co-ownership”??? So my brother and I can’t make a binding contractual agreement that neither of us will buy back the property and if one of us defaults, they must either pay the other party a certain amount or they must convey half of the property back to the other party? I thought two parties could agree to almost any terms in a contract as long as it’s fair?
Thomas J Callahan
Real Estate Attorney in Hanover, MAYou propose to force him to make you a co-owner again if he were to buy the house in the future. You can make whatever agreement you'd like. Maybe it will need to be resorted to, maybe mot. But I don't think it would be enforceable for lack of consideration for one reason. And again, why would you care if he bought the house in the future?
Asker
WHY we want to make this agreement is legally irrelevant, yet you’ve now asked about our reasoning twice. I’m asking for legal input, not family therapy. We will add consideration to our agreement. Thank you.