Q: In 2009, my wife and I bought a fixer-upper on the auction block in a small town in Alabama so my brother and his wife and son had a place to live. My brother is a darn good carpenter who went through this house several times and convinced me to buy it. And now my wife and I own it free and clear with only our names on the deed.
We purchased it with a home equity loan against my current primary residence in Maryland. We have never charged my brother rent. He lived there for free but paid the utilities, taxes, association fees and homeowner’s insurance, and performed all the necessary repairs and maintenance.
The intent was to eventually sell the house to my brother for only my out-of-pocket costs, including the interest I paid on the home equity loan. Any improvements to the home (there were many, all completed by my brother) were paid for by my brother and were his to keep.
The house is now worth way more than what we paid, and our out-of-pocket costs total about $75,000. My brother has paid me back the $75,000. Can’t I just add him and his wife to the deed and then my wife and I would sign a quitclaim deed, thereby handing ownership over to him?
A: The simple answer to your question is yes. The deal you and your brother struck seems to have been satisfied. Your brother paid you back what he owed. Now it’s time to sign over the property.
We would have liked for you and your brother to have had something in writing detailing your relationship and the deal you both struck. We're going to assume that you and your brother had a handshake deal for the home and that there is no paper trail.
Based on what you told us, it seems that you've sold the home to your brother but have not yet followed up with the paperwork to put him on the title. If you had papered your arrangement, it would have said something like this: "I own the home but you will pay me over time for the home. We are setting the sales price of the home to that which equals what I paid for the home plus all other expenses that I may pay relating to the ownership of the home. You can complete the ownership of the home when you have paid me all amounts that are due to me. When you pay me all that money, I will convey title to you."
This arrangement is similar to what some people would call a contract for deed or installment contract for deed. Now that your brother has done what he needed to do under the arrangement, you need to do your part.
You and your wife own the title to the home, and you can convey that title to your brother directly through the use of a warranty or quitclaim deed. Either document will be sufficient to convey your ownership interest in the home to your brother and his wife. While either form is sufficient, we have heard that some recorder of deeds offices or the office that accepts real estate documents for filing locally will not accept a quitclaim deed to transfer title.
The only difference between these two documents is that the warranty deed affirmatively states that you own the home and are conveying your interest in the home to your brother and his wife. A quitclaim deed only says that you are conveying your interest in the home to your brother and his wife. Because the quitclaim deed can be used when someone doesn't have any interest in the home and is used to settle claims of interest and disputes, recorders and filing offices prefer to have warranty deeds for the transfer of ownership interests.
You may need someone to help you draft the documents to make sure that your ownership of the property is properly conveyed to your brother and his wife. And there might be other paperwork to file with the deed. You actually sold the home to your brother for $75,000 and any paperwork related to the sale may need to show that sales price. You and your brother may have some transfer taxes to pay and may have other paperwork to file relating to the sale. If it seems like too much to get done on your own, you can hire a title or escrow company or real estate attorney to help.
Once you record the deed and other documents relating to the deed, you will have satisfied your side of the deal and your brother and his wife would end up owning the home.
As a side note, we hope you've kept the paperwork on your costs and expenses relating to the home. The IRS will have an interest in taxing any profits you have made on the sale. You've indicated that your brother only reimbursed you for the costs so you shouldn't have any profit or have to pay taxes on the sale of the home. On the other hand, now the home is worth a lot more than the $75,000 and the difference between its actual value today and the sales price can be an issue.
The IRS could claim that difference is a gift to your brother, requiring a filing with the IRS; but if you have sufficient documentation to show that the sale was part of an installment sale of the home, it shouldn’t be considered a gift. On your brother’s side, we hope he has kept the paperwork to show what he has put into the home so that when he sells the home, he knows what his cost basis is for the home. (Basis is the IRS term to figure out the starting point in determining the profit on the sale of the home.)
Ilyce Glink is the author of “100 Questions Every First-Time Home Buyer Should Ask” (4th Edition). She is also the CEO of Best Money Moves, an app that employers provide to employees to measure and dial down financial stress. Samuel J. Tamkin is a Chicago-based real estate attorney. Contact Ilyce and Sam through her website, ThinkGlink.com.