Mama lived a good life and raised two wonderful children. Jack moved to Oregon, and his sister, Carol, lived in the family home in Washington with her mother. Mama just died, and had the good sense to have a last will and testament, giving the home to both children equally as tenants in common.
In our fictitious example, Jack wants to buy a condo, sell the house and get half of the sales proceeds. Carol wants to stay in the house but cannot afford to buy Jack out. The house has appreciated nicely over the years.
How do they resolve this situation if they cannot reach a friendly brother-and-sister agreement?
There is in the law a concept known as “partition.” Judges throughout the country have made it clear they will not force two or more people to continue owning real property where one of the owners wants out.
Jack can file a partition lawsuit in a local court where the property is located. Alternatively, he can find a speculator who will give him immediate cash, in return for getting a deed to Jack’s half-interest in the house. A tenant in common can sell his interest — or even give it to someone by gift — without the consent of his fellow co-tenant. And the speculator can then file the partition lawsuit, and ultimately kick Carol out of the family home.
If Jack and Carol owned two properties, the court could order that each would end up owning one of the properties. In our case, the court will force the sale, with the proceeds being divided equally. The sale can be handled by an independent real estate agent or the judge — after advertising the sale in a newspaper for several weeks — can hold an auction right in the courthouse. From my experience, however, having represented brothers or sisters in similar situations, the only winners in a partition action are the lawyers and the speculators who often get a good bargain.
Carol would get half of the proceeds. She may be able to be reimbursed for any real estate taxes or mortgage payments that she made over the past three years. But unless she can arrange to be a tenant with the new owner, she will have to move out of the family home.
A recent report by the National Conference of Commissioners on Uniform State Laws found that partition lawsuits have resulted in the displacement of many low- to moderate- income families across the country. For example, the report stated that “African-Americans have experienced tremendous land loss over the course of the past century . . . and partition sales have been one of the leading causes of involuntary land loss.” The report made it clear, however, that “forced partition sales have negatively impacted other communities as well” — pointing out that Mexican Americans lost hundreds of thousands of acres in New Mexico and other states.
Such displacement is not limited to rural areas. Cities including Washington D.C., face similar concerns. All too often, property is handed down from generation to generation. For example, great-grandfather had two brothers and a sister. The three inherited the property when he died. Each brother had a wife and two children. When one of the brothers died, his wife inherited the property but she remarried and had another child. It gets complicated, especially when there is no will. I once had to track down 32 distant relatives in order to clear title.
There is a bill pending before the D.C. Council, the Uniform Partition of Heirs Property Act, whose purpose is to remove — to the extent possible — the adverse consequences of a partition action while at the same time recognizing the rights of a co-tenant to sell the property. Clearly, it is a difficult balance.
If it were enacted into law, Carol would have to get advance notice before John — or the speculator who bought his interest — can file the court action. Once the lawsuit is filed, the judge is authorized to obtain an appraisal to ensure the property will not be sold in a “fire- sale” situation.
Furthermore, Carol would have the right to buy the property. She could bring in a friend or a relative to assist her, if possible, so she could remain in the family home.
Higher-income families typically retain estate-planning specialists to ensure a smooth transition of wealth to the next generation. Mama — to her credit — gave the property by will to her two children, but did not consider the consequences. All too often, however, there is no will and a contested probate case drags on for months or years.
The proposal is pending before the D.C. Council’s Committee on the Judiciary.
Benny L. Kass is a Washington and Maryland lawyer. This column is not legal advice and should not be acted upon without obtaining legal counsel. For a free copy of the booklet “A Guide to Settlement on Your New Home,” send a self-addressed, stamped envelope to Benny L. Kass, 1050 17th St. NW, Suite 1100, Washington, D.C. 20036.