DEAR BOB: My mother, now divorced, owned a house with her former husband. But 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, and is my mother entitled to all or half of the property? –Leslie LeB.

DEAR LESLIE: For simplicity, I presume the house is not in a state allowing 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 after the divorce.

Purchase Bob Bruss reports online.

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.” Also, 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 the ex-husband’s half of the house became subject to his will, which apparently left his half of the house to the nephew.

Under the law of virtually every state, your mother still owns her half of the house, but as a tenant in common and not as a joint tenant with right of survivorship. The fact her name is on the mortgage papers 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. Better yet, perhaps they should try to get along as tenant-in-common co-owners. For more details, she should consult a local real estate attorney.

GET A SURVEY TO PROVE TRUE BOUNDARY LOCATION

DEAR BOB: My next-door neighbor insists the property lines for our properties are wrong. He is a “bully type” and insists my roadside mailbox is on his property. He has even gone so far as to place survey flags along the supposed boundary. Is there anything short of legal proceedings or another survey that he will contest? –Mike H.

DEAR MIKE: I suggest you 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 location, but those circumstances are very rare. Until you have written proof where the true boundary is located, you’re in a weak situation.

PITFALLS OF OUT-OF-TOWN PROPERTY OWNERSHIP

DEAR BOB: I am at my wit’s end. I am a landlord with a townhome several hundred miles from my residence. The tenants didn’t pay the rent for two months. They moved out in the middle of the night. I contacted a local attorney there. He wants $1,000 up front to file a lawsuit against them and try to serve them with a process server. Can I file the court papers myself and try to serve them, as my funds are limited? –Pamela F.

DEAR PAMELA: You forgot to tell me how much the ex-tenants owe for unpaid rent, the amount of their security deposit, and if 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 summons and compliant (you can’t do that yourself), 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 a big part of this problem was you! You never should have let your tenants get two months behind in the rent. This might be a good time to fix up that distant property and sell it.

As a landlord, my policy is to make a friendly phone call (or visit if I want to check up on the property) when the rent is three days late to remind the tenant the rent hasn’t been received. Sometimes it’s just an oversight. On the fourth or fifth day, I post the “Pay Rent or Move” notice on the door and then keep the eviction action moving as fast as possible.

In more than 35 years of renting to tenants, I’ve had to evict only three tenants in court. But I’ve started the procedure so many times I’ve lost count. Most tenants either pay up, move out, or we reach an agreement to pay the overdue rent weekly.

HOW TO CLAIM TITLE BY ADVERSE POSSESSION

DEAR BOB: My favorite article you wrote was the one about obtaining title by adverse possession. My question involves an abandoned property that is going to tax sale. What is the best way to post notice on the property and remain completely in honor? –Rodger W.

DEAR RODGER: If you have been occupying the property without the owner’s permission for the required number of years in the state where it is located, you may qualify to obtain title by adverse possession. The requirements are open (obvious), notorious (not secret), hostile (without the owner’s permission) and continuous occupancy. In addition, you must have paid the property tax for the required number of years.

If you qualify to obtain title by adverse possession but haven’t paid the overdue property tax, hustle down to the tax collector’s office to pay those taxes so the property doesn’t go to the tax sale where some stranger can obtain title with his/her high bid.

After you pay the property tax, presuming you meet the tests explained above, you can bring a quiet title lawsuit to perfect your title by adverse possession. You’ll need a local real estate attorney for that.

BEST WAY TO LEARN IF SELLERS KNEW OF HOME DEFECTS

DEAR BOB: My son and his wife bought their first home in August 2006. With the first heavy rain, the sewage from the septic tank backed up into the house. They had the tank pumped out. But at the next heavy rain, the same problem happened again. No mention was made during the purchase negotiations about any septic tank problems. Do they have any recourse against the sellers? –Harry F.

DEAR HARRY: This situation shows why buyers of homes with septic tanks should always make their purchase offer contingent on a satisfactory septic tank inspection before the purchase closes.

Your son and his wife might have recourse against the sellers if they can prove the sellers knew of the problem and failed to disclose it before purchase.

The best way to learn if the sellers knew of any home defects is to ask the neighbors. They usually know if there were any problems with the property before the sale.

If not, it could be a new problem and there might not be any legal recourse against the sellers to have the septic tank rebuilt to operate correctly. For more details, the buyers should consult a local real estate attorney.

THE ONLY WAY TO AVOID TAX ON RENTAL-PROPERTY SALE

DEAR BOB: My wife owns an inherited rental house that we plan to sell this year. We estimate a $300,000 capital gain above the stepped-up basis market value on the date of inheritance. If we buy a new home, can we obtain any exemption from tax on the capital gain? We have not lived in the house any of the last 60 months –Greg C.

DEAR GREG: There is only one way to avoid tax on the sale of a rental property. It is to make an Internal Revenue Code 1031 tax-deferred exchange of the rental house for another property to be held for investment or use in a trade or business, such as a rental house of equal or greater market value and equity.

At the time of the IRC 1031 exchange, both properties must be rentals. However, you can eventually convert the acquired rental property into your personal residence, if that is your wish. To show rental intent, most tax advisers suggest renting the acquired property at least six to 12 months before moving in. For full details, please consult your tax adviser.

The new Robert Bruss special report, “The 10 Key Questions Smart Home Buyers Ask to Avoid Getting Ripped Off,” is now available for $5 from Robert Bruss, 251 Park Road, Burlingame, CA 94010 or by credit card at 1-800-736-1736 or instant Internet delivery at www.BobBruss.com. Questions for this column are welcome at either address.

(For more information on Bob Bruss publications, visit his
Real Estate Center
).

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