Legal question re; ownership of house?

Question

Hi guys,

I have a question for all the expert legal minds out there. My parents are separated, and want to figure out an amicable arrangement for division of assets. As part of the the agreement, my dad has suggested we split the ownership of the house between him and me, 20%/80%. He has agreed to continue paying the mortgage on it until it is sold.

Is this type of agreement legally enforceable, and is there a way I can legally enforce it? Would I be entitled to 80% of the value upon sale of the house, or 80% of income generated from the house? Because he is still the holder of the mortgage on the house, I'm not sure how valid my 80% claim would be.

Any help would be appreciated greatly. Thank you!

Answer 1

O.K. Well, you have to take a look at the facts and circumstances. The first thing you mentioned is that your parents are "seperated" but not yet "divorced".

You went on to mention that your parents would like to file for a "non-contested divorce", by noting that they wish to negotiate and talk-out an "amicable arrangement for division of assets".

First of all, let's talk about the divorce. It looks like your parents are going to talk it out; if your mother is willing to leave the house uncontestedly, there must either exist a well-written pre-nupt, or other assets to which your father will not fight over.

When the divorce is finalized, your father will have full ownership of the said "house", and your mother will have whatever else your father doesn't. That being said, you take no part in the split during the divorce process.

Therefore, this begs the question; "as of WHEN will such an agreement be effective"??? To answer that, we must look beyond when such an agreement was made, but to when it was properly put into motion. This is what I mean.

Suppose your father tells you that the house is 80% yours. You sign a contract & seal it in blood on an official letterhead. House gets sold, check gets made out to your father, and he gambles it all away the same day. (not saying that he will; i'm sorry if your father has a gambling problem, i didn't know, I was just trying to make an example). The point is, what can you do? Well, you can sue him, for everything he's gambled away. But how will that work out??? What will he pay your with???

Now before we even go that far, let's be realistic. You father is a good guy, his days or reckless gambling are long past him. When the house gets sold, he gets the check, and refuses to give you anything. You wind up in court in an effort to "enforce" his promise to pay you your 80%.

Well, unfortunately for you; you CAN'T enforce this promise, because a valid (legally binding) contract has not been formed. It lacks the one basic element needed to form a contract; (consideration). This promise sounds more like a "gift", and a "gift" is a promise that can be dishonored at any time by the "giver" with no legal consequenses.

So.. we get it... this promise means nothing.. I can't take him to court.. it's not enforcable.. your dad's a liar.. Well, don't just call it a day yet.

If he made you this offer, then he will still be willing to follow it through. When you CAN do is place both names on the (deed or title) of the property, and record it on public record with the county clerk's office. This way, when the house gets sold, the title company notifies the buyer that YOU are an 80% owner, and your father is a 20% owner. Therefore, the buyer will now have to make out two checks; one to you for 80% of the selling price, and one to your father for 20% of the selling price.

However; don't run up to the county clerk so fast!!! There are HUGE, GINORMOUS consequenses for adding someone else to the deed or title of the property.

1. The Bank can demand payment (in full) of the outstanding principle balance of the home loan. In short, almost nobody can afford to pay that amount within 30-days, so a default will occur.
2. This can be avoided if you first ask your Bank. The Bank will probably say "no", because they are taking on additional risk by allowing an other name to appear on the deed, and not recieving any additional interest revenue to compensate that.
3. In short, you will have to find a bank which will be willing to help you refinance the home AND allow you and your father to appear on the deed under the terms you have both agreed on (80,20 split).
4. Secret splits & agreements are non-binding on third parties. When you record the deed, include the split (80,20). In the event someone takes out a loan, the creditor has no way on knowing how much equity that person has, and is lead to believe that either you or your father are simply owning the house jointly.
5. There is no part five, I think i've said all there is to say.

Talk it over with your father, it's not a bad idea to sit down with a Real-Estate ATTORNEY, or General Lawyer and get some advice on this issue. State laws may vary, and sometimes, County laws can be restrictive on this issue.

I hope this entry was helpful, I'm sorry for having you read so much. Best of luck on the whole situation!

Answer 2

Get an appraisal immediately and then use real numbers rather than estimations based upon percentages. That being said I have no idea why you would have interest in the house as it is more commonly split between the two spouses, not parent and child. If mom has no claim to the house, and the arrangement is in writing and recorded with the deed, then it is legally enforceable. More likely your 80% claim to your Dad's offer will resemble 40% (80% of 50 %) because your Mom will have a 50% claim prior to yours.

Answer 3

It doesn't matter that he is the mortgage holder. You need to be on the title of the house. This will stake your claim. Can do this easily by quick claim deed and then having it registered, you can get one online and it doesn't cost much to have it registered with the county. If you cannot find one online, go to a title company and they have them.
As to your percentages, this must be done via contract, signed and notorized. This way if you do need to enforce the agreement, you will have proof.

Answer 4

In most states you mom and dad are joint tenants. Which says each get 50% interest. He can only quit claim any portion of his 50% to you as long as it is recorded in the court house deeds office

Answer 5

these people don't know a thing. I would advise you to hire an attorney to sort through these issues for you. a quit claim should be used in certain situations. And this may not be one.