Quit Claim Deed Can Split Community Property
REM #LAW825
By Ilyce R. Glink and Samuel J. Tamkin
Summary: A ThinkGlink reader living in a community property state asks about removing a co-owner from a mortgage and property's deed. The co-owner has not contributed to the maintenance or mortgage of the property. One option is to have the co-owner sign a quit claim deed. Sam and Ilyce advise trying to amicably separate first and if that does not work the property owners should contact a real estate attorney.
Q: A friend and I got together to buy a condo in San Diego. We decided that buying together would get us a better place to live closer to our jobs. Both of us are listed on the mortgage.
But now I want to remove him from the mortgage. He hasn't contributed financially to the condo at all. He is tearing up the place and being bothersome to neighbors and guests. He also has no secure job. How can I legally evict him and remove his name from the mortgage?
A: Your question isn't really about getting a person off a mortgage, but rather how to get rid of a co-owner of a property and also remove him from the home.
For couples that live in California, or other community property states, you would first need to determine whether your relationship could be considered a common law marriage. If it were a common law marriage, your separation would either have to be amicable or similar to a divorce. Â
You describe your situation as that of two friends who purchased a home together. Your first option is to come to an amicable agreement to separate and go your own ways. He would quit claim his interest in the property to you, you would pay him whatever he is owed for his share of the property, if anything, and you would refinance the loan on the property to get his name off the loan.
In paying him for his share of the property, you would need to determine what you and he contributed to the property when it was purchased, what each of you were required to pay for the expenses of the home during the time you've owned it, and what the home is worth today. When you tally the numbers, you might find he owes you money or it's possible that you owe him money.
If you've owned the property for some time and the property has appreciated in value and you both own equal shares of the property, he might claim that you owe him money due to the appreciated value of the home.
Another way to handle this is for both of you to agree to sell the home. You would split the proceeds from the sale in accordance to how whatever method you and he agree to. If he hasn't paid his fair share of the expenses, you might be able to deduct those costs from his share of the equity, if there is any.
While we don't know the particular circumstances you face, what your arrangement was in deciding to own the property together or whether you are even on speaking terms, if you're unable to agree amicably to separate, your next option might be to force the issue with attorneys and even move to litigation.
This method would be the most expensive. But you could ask the court to decide the issue for you.
Keep in mind that he is still an owner of the home and you might not be able to evict him unless he has physically hurt you and you are entitled to a protective court order to keep him away from you. Otherwise, the separation might be compared to a quasi divorce proceeding (a partition suit) where a judge would review the ownership of the home, recommend that each of you work out your differences, obtain appraisals for the home or force the sale of the home. The judge could force your friend to sell to you or could force both of you to sell and split the proceeds.
A partition suit can be quite expensive. The best thing would be for you and your friend to work out your differences and move on.
And next time, please seek the counsel of a real estate attorney before you decide to buy real property with a friend.
Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce R. Glink's latest book is 100 Questions Every First-Time Home Buyer Should Ask. If you have questions for them, write: Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022 or contact them through Ilyce's website www.thinkglink.com. © 2008 by Ilyce R. Glink and Samuel J. Tamkin. Distributed by Tribune Media Services.
REM #LAW825
By Ilyce R. Glink and Samuel J. Tamkin
Summary: A ThinkGlink reader living in a community property state asks about removing a co-owner from a mortgage and property's deed. The co-owner has not contributed to the maintenance or mortgage of the property. One option is to have the co-owner sign a quit claim deed. Sam and Ilyce advise trying to amicably separate first and if that does not work the property owners should contact a real estate attorney.
Q: A friend and I got together to buy a condo in San Diego. We decided that buying together would get us a better place to live closer to our jobs. Both of us are listed on the mortgage.
But now I want to remove him from the mortgage. He hasn't contributed financially to the condo at all. He is tearing up the place and being bothersome to neighbors and guests. He also has no secure job. How can I legally evict him and remove his name from the mortgage?
A: Your question isn't really about getting a person off a mortgage, but rather how to get rid of a co-owner of a property and also remove him from the home.
For couples that live in California, or other community property states, you would first need to determine whether your relationship could be considered a common law marriage. If it were a common law marriage, your separation would either have to be amicable or similar to a divorce. Â
You describe your situation as that of two friends who purchased a home together. Your first option is to come to an amicable agreement to separate and go your own ways. He would quit claim his interest in the property to you, you would pay him whatever he is owed for his share of the property, if anything, and you would refinance the loan on the property to get his name off the loan.
In paying him for his share of the property, you would need to determine what you and he contributed to the property when it was purchased, what each of you were required to pay for the expenses of the home during the time you've owned it, and what the home is worth today. When you tally the numbers, you might find he owes you money or it's possible that you owe him money.
If you've owned the property for some time and the property has appreciated in value and you both own equal shares of the property, he might claim that you owe him money due to the appreciated value of the home.
Another way to handle this is for both of you to agree to sell the home. You would split the proceeds from the sale in accordance to how whatever method you and he agree to. If he hasn't paid his fair share of the expenses, you might be able to deduct those costs from his share of the equity, if there is any.
While we don't know the particular circumstances you face, what your arrangement was in deciding to own the property together or whether you are even on speaking terms, if you're unable to agree amicably to separate, your next option might be to force the issue with attorneys and even move to litigation.
This method would be the most expensive. But you could ask the court to decide the issue for you.
Keep in mind that he is still an owner of the home and you might not be able to evict him unless he has physically hurt you and you are entitled to a protective court order to keep him away from you. Otherwise, the separation might be compared to a quasi divorce proceeding (a partition suit) where a judge would review the ownership of the home, recommend that each of you work out your differences, obtain appraisals for the home or force the sale of the home. The judge could force your friend to sell to you or could force both of you to sell and split the proceeds.
A partition suit can be quite expensive. The best thing would be for you and your friend to work out your differences and move on.
And next time, please seek the counsel of a real estate attorney before you decide to buy real property with a friend.
Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce R. Glink's latest book is 100 Questions Every First-Time Home Buyer Should Ask. If you have questions for them, write: Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022 or contact them through Ilyce's website www.thinkglink.com. © 2008 by Ilyce R. Glink and Samuel J. Tamkin. Distributed by Tribune Media Services.
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