Real Estate Legal Questions

Record the deed.  Title passed when the deed was signed, not when it is recorded.  I am assuming the deed gave you and your husband title with right of survivorship.  If that is the case, you become the sole owner.  If there is no survivorship, you will either have to have your husband's interest pass to you through probate of his will, or if he died inestate (without a wlll) by an affidavit of descent to be recorded in the real estate records.  ... Read More

I'm sorry to hear about your difficult situation.  If your name is on the mortgage, then your name must also be on the deed.  You can either both agree to sell the property and pay off the mortgage; he can refinance the loan and take you name off the deed or you can inititiate a partition action with the court to force a sale if he won't cooperate.  I'd want to see all of the pertinent documents before giving you definitive advice.  ... Read More

You would need to obtain a circuit court judgment recognizing that you have established title to the property.  There are many elements to adverse possession and, as the claimant, you would have the burden of proving each of them by clear and cogent proof.  If the land involved abuts other land to which you hold title, you should consider a claim for acquiescence as an alternative.  It is easier to prove, if the conditions are right.  Because adverse possession and acquiescence are fact-intensive, they can be expensive suits to take all the way through trial, for both sides. Unfortunately, they are difficult to settle short of that.  Emotions often run high and opposing sides often strongly believe different facts.  You will definitely need the help of an attorney and most likely a surveyor.  I would pick an attorney with experience in such cases, preferably in the area in which the land is located, and, if a surveyor will be needed as an expert, let that attorney pick a surveyor he or she thinks will best understand the case and be able to testify to the court.... Read More

While it is a technical default under the HELOC to transfer the title, you can do it if you are giving it to someone who does not care (like a family member).  However, you have bigger issues.  If you are building another house and selling it, you need to create a separate tax lot, which requires filings with the town to make a subdivision.  Also, a third party will require the HELOC to be paid off.  The HELOC people will not carve out property from the lien.  Also, you will need permits, etc., for the construction.... Read More

Your agent should inform the listing agent, in writing, of your insistence on proceeding to close and request that the seller not contact you directly.  It is not illegal for the seller to speak to you directly, and any legal action would likely take more than the one week between now and the closing, but in this situation the seller should understand that continuing to try to contact you is counterproductive.   If the seller thinks he/she has a legal basis for terminating the agreement, your agent should request that the listing agent provide an explanation, in writing, to your agent so that you can respond to it through the agents. Bear in mind that agents cannot always control their clients.  Even if you follow what I suggest and the agents do their part to the best of their ability, the seller may simply be beyond their control.    ... Read More

Years ago I wrote a chapter for a continuing legal education book addressing breaches of real estate purchase and sales contracts.  Based on the research I did for that chapter, because you have treated the transaction as still pending a few weeks after the missed deadline, you need to give the buyer a notice (best in a letter) setting a firm deadline for performance with a warning that no further delays will be tolerated.  That deadline needs to be reasonable time in the future, given the length of time they have been in default without you declaring a default.  Here I would suggest that be a couple weeks out from the date of the letter setting the deadline.  Then if the buyer does not perform, you can terminate the closing.  I have applied this approach a few times over the past few decades and not had a buyer challenge it.  This is important because you do not want this nonperforming buyer to be in a position to challenge a purchase by someone else.       ... Read More

If both parties agree, I would not use a partition action.  If both parties want to split the property physically, you would obain a survey with the legal descriptions, obtain local government approval for the split if required, and then both parties would sign deeds of the land to go to each party.  That would be very simple, with no need for a partition action.  If both parties want to sell the property, they can proceed with a sale without going through a partition action.  A partition action is useful when one party wants to sell the land and the other will not agree.  With joint tenancy with full rights of survivorship, a partition action is available but of limited utility because the survivorship interest cannot be broken.  This means that all the court can order sold at auction is the life estate interest of the joint tenants, but when all but one joint tenant have passed away, the property vests in the last surviving joint tenant.  Not a lot of buyers for that sort of interest.  All parties are much better off if they can agree what to do with the property, and in that situation, you don't need a partition.... Read More

The purchase agreement should address when possession is to be delivered.  If it is silent, possession is to be delivered at closing.  Neither party can unilaterally change the deadline for delivering possession. If the seller refuses to close unless the buyer agrees to delayed possession, the buyer should schedule the closing, notify the seller of the closing date, time, and place, and then show up.  If the seller does not close, that would set up a claim for breach of contract to obtain specific performance and/or damages.  Such a suit could take more than 6 months to reach the end but that is rarely necessary.  The parties usually reach a resolution once they have to engage attorneys.  In your case, the seller may not be willing to risk the loss of the sale and may be counting on the sales proceeds to pay for the new place. If the seller closes but then refuses to leave, the buyer can bring an eviction action.  The notice requirement is usually 7 days; if the seller is not out by then, the buyer would proceed with the summary proceedings.  A hearing usually follows a week or two thereafter and, if the seller has no right to stay, the court will order the seller to leave within 10 days.  This may get the seller a month or so.     ... Read More

Your attorney.  No one should purchase a house with work that requires a CO and not get one.  One could overlook minor issues, like a deck, but a second floor, no way.  Title insurance does not help.  You are going to have to legalize this.  No one else but you would close for market value with this kind of CO issue.  I am surprised your mortgage company approved it.... Read More