Tenants in Common, But Not Really

By Robert J. Bruss
Saturday, January 20, 2007

Q: DEAR BOB: My mother, now divorced, owned a house with her former husband. Before the divorce papers were completed, without my mother's knowledge he changed his title to the house from joint tenancy with right of survivorship to tenants in common. He died recently. Now his nephew is claiming the house under his will. My mother is still on the title and loan papers. Can a joint tenancy title be changed without permission of the other joint tenant, and is my mother entitled to all or half of the property?

-- Leslie LeB.

A: DEAR LESLIE: For simplicity, I presume the house is not in a state that allows a married couple to hold title as tenants by the entireties, which is a special form of joint tenancy that cannot be terminated by one spouse. If the divorce settlement papers didn't specify what was to happen to the house title after the divorce, each still owned half of the house after the divorce.

Unfortunately for your mother, a joint tenant with right of survivorship does not need permission from another joint tenant to change the ownership method to tenants in common. Also, her ex-husband could have sold his half-interest in the property or given it away without her permission.

Presuming her ex-husband executed and recorded a valid quitclaim deed from himself as a joint tenant to himself as a tenant in common, that broke up the joint tenancy without notifying your mother. The result is the ex-husband's half of the house became subject to his will, which apparently left his half of the house to his nephew.

Under the law of almost every state, your mother still owns her half of the house, but as a tenant in common and not as a joint tenant with right of survivorship. The fact her name is on the mortgage papers is irrelevant to the title.

Perhaps she should offer to buy out the nephew's inherited half, or maybe she should ask him to buy her out. Better yet, perhaps they should try to get along as tenant-in-common co-owners. She should consult a lawyer for details.

DEAR BOB: My next-door neighbor insists the property lines for our properties are wrong. He insists my roadside mailbox is on his property. He has even gone so far as to place survey flags along the supposed boundary. Is there anything short of legal proceedings or another survey? -- Mike H.

DEAR MIKE: Hire your own licensed surveyor to determine the correct boundary location. I have heard of a few situations where licensed surveyors disagree on the correct boundary location, but those circumstances are rare. Until you have written proof of where the true boundary is located, you're in a weak situation.

DEAR BOB: I am at my wit's end. I am a landlord with a townhouse several hundred miles from my residence. The tenants didn't pay the rent for two months and they moved out in the middle of the night. I contacted a lawyer there and he wants $1,000 up front to file a lawsuit against them. Can I file the court papers myself and try to serve them, as my funds are limited? -- Pamela F.

DEAR PAMELA: You did not tell me how much the ex-tenants owe for unpaid rent, the amount of their security deposit or if they have any assets. If they moved out in the middle of the night, they might not be worth suing.

You could prepare the summons and complaint yourself, but I don't recommend it because you are likely to make mistakes. Presuming you find the ex-tenants, have a process server serve them with the summons and complaint (you can't do that yourself). If you get a court judgment, you have to try to collect it.

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