Unexpected (or lessons in homeownership and property law)

I had a client come in who wanted to put her children’s name on the house.  I had our office intern look for the deed because well, my eyes got dialated at the doctor’s that morning and I couldn’t read anything.  So when we had trouble finding a deed to her, rather than a mortgage in her husband’s name, I asked her a few more questions.  She had told me that when her husband died, she went to the land records office and told them she was the survivor and the house should be in her name.  They told her it would pass to her automatically. 

It wasn’t until another few minutes passed that I realized what happened.  Because she said those tell-tale words: “we got divorced”.  Oh.

So a quick real property lesson (not legal advice).  There are three ways to buy a house:

1.) Tenants in common (each person owns a share)

2.) Joint tenants w/ right of survivorship (each person owns half the house, but the survivor gets it when they die).

3.) Tenants by the entireties (only available to a married couple, gives you right of survivorship and protects the house from creditors.) 

I knew immediately that what happened was that the divorce severed the tenancy by the entireties, and made it a tenancy in common, meaning my client only owned 50% of the house, and did not have clear title. 

So far, I’m the only person (along with our office) who knows this because we’ve had no luck finding the judgment of divorce.  Although the client remarried.  So she’s either a bigamist, or she only owns 50% of her house.  But my real question here is: do you understand the problem and what happened?  Because my client did not.  She kept telling me, “I have a right to the house.  I didn’t leave the house just because I left an abusive marriage.”  I felt terribly that this woman might think I was accusing her of doing the wrong thing by leaving her marriage, but she did NOT understand that her ex-husband’s share of the house did not automatically pass to her because they weren’t married at the time of his death.   

So how should I have explained it?  I’m thinking of having some charts made for this kind of problem.  And to explain a life estate with and without powers.


Filed under Lawyering

3 responses to “Unexpected (or lessons in homeownership and property law)

  1. Yikes, that’s so hard! I’m not sure how you could have explained it better. I suspect that she does understand what happened on an intellectual level but she desperately wants the consequences to not be true, for there to be an exception for her because of the circumstances of her divorce.

    Who owns the other half of the house? The bank?

    • vadoporroesq

      Ex-husband’s estate, so it will go to her kids, not really a problem, they just have to open probate back up and admit the house and then transfer the property to themselves.

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