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Co-owner need not okay title change

By Robert J. Bruss
Published February 3, 2007

Q: My mother, now divorced, owned a house with her former husband. Before the divorce papers were finalized, without my mother's knowledge, he changed his title to the house from joint tenancy with right of survivorship to tenants in common. He passed away 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? Is my mother entitled to all or half of the property?

A: For simplicity, I presume the house is not in a state that allows a married couple to hold title as tenants by the entireties (a special form of joint tenancy that cannot be terminated by one spouse alone). 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.

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." Her ex-husband could have sold his half-interest in the property or given it away without her permission.

Presuming the 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 that the ex-husband's half of the house became subject to his will, which apparently left it to the nephew.

Under the law of virtually every state, your mother still owns half of the house, but as a tenant in common and not as a joint tenant with right of survivorship. The fact that her name is on the mortgage 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. Perhaps they should try to get along as tenant-in-common co-owners.

Breaking boundaries

Q: My next-door neighbor insists our property lines are wrong. He is a bully who insists my roadside mailbox is on his property. He has gone so far as to place survey flags along the supposed boundary. Is there anything I can do short of legal proceedings or another survey that he will contest?

A: Hire your own licensed surveyor to determine the correct boundary location. I've heard of a few situations where licensed surveyors disagree on the correct boundary, but it is rare. Until you have written proof of the true boundary, you're in a weak position.

Long-distance laxity

Q: I am a landlord with a rental townhome several hundred miles from my home. My tenants failed to pay the rent for two months, then moved out in the middle of the night. I contacted an attorney in that city, and he wants $1,000 upfront to sue them and have them served with the papers. Can I do this all myself to save money?

A: You forgot to tell me how much the ex-tenants owe for unpaid rent, the amount of their security deposit, and whether they have any assets. If they moved out in the middle of the night, they might not be worth suing.

Yes, you could prepare the summons and complaint yourself, but I don't recommend it, as you are likely to make mistakes. Presuming you find the ex-tenants, have a process server serve them with the papers and get a court judgment, then you have to try to collect it.

Your situation shows the pitfalls of long-distance rental property ownership. But you never should have let your tenants get two months behind in rent. This might be a good time to fix up that distant property and sell it.

You can send e-mail to Robert J. Bruss by visiting his Web site, www.bobbruss.com. Click on "Ask Bob a Real Estate Question." Or write to Robert J. Bruss, 251 Park Road, Burlingame, CA 94010.

[Last modified February 2, 2007, 19:30:10]