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Christopher B, Esq.
Christopher B, Esq., Lawyer
Category: Family Law
Satisfied Customers: 2642
Experience:  associate attorney
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I am in a joint tenancy with rights of survivorship and share

Customer Question

I am in a joint tenancy with rights of survivorship and share the home with my son's mother and we are no longer in a relationship. I bought mortgage and then had the JTROS enacted afterward. She has not worked for a year and does not share the expenses of the home. I want to terminate the JTROS and have her removed from ownership.
JA: The Family Lawyer will need to help you with this. Have you consulted a lawyer yet?
Customer: no
JA: Please tell me everything you can about this issue so the Family Lawyer can help you best. Is there anything else the Family Lawyer should be aware of?
Customer: we have lived in the home for just under 4 years. I have asked her to leave several times and she usually does leave for 3 to 4 days at a time without returning.
JA: OK. Got it. I'm sending you to a secure page on JustAnswer so you can place the $5 fully-refundable deposit now. While you're filling out that form, I'll tell the Family Lawyer about your situation and then connect you two.
Submitted: 5 months ago.
Category: Family Law
Expert:  Christopher B, Esq. replied 5 months ago.
My name is***** and I will be helping you with your question today. This is for informational purposes only and does not establish an attorney client relationship. You can terminate a joint tenancy with rights of survivorship but you cannot terminate your son's mother interest in the property unless you buy her portion out or she voluntarily relinquishes it. The point is, this cannot be unilateral and your son's mother must make an agreement to terminate her interest in the property. There are several ways to terminate the JTROS:If you want to terminate your joint tenancy, and still retain an interest in the property, you have a few options. (1) First, you and your co-tenants can agree to convert the joint tenancy into a tenancy in common. (2) Second, you may unilaterally, and without the knowledge or consent of your co-tenant(s), transfer your share to a third person who is acting as a straw-man. This straw-man will then transfer your share back to you. However, because the four unities no longer exist, you now own a share as a tenant in common. The modern trend among states is to allow unilateral conversion of a joint tenancy to a tenancy in common without the use of a straw-man. Many states now allow a joint tenant to simply transfer their own interest to themselves, thus eliminating the need for a third person as a straw-man. It is important to note that some states, like California, require the severance to be recorded for it to be valid. An unrecorded severance may reserve a right of survivorship for the non-severing tenant.(3) Third, you can seek judicial partition. There are two kinds of partition:(a) Partition in kind is physical division of the land. The court decides how to split up the land between co-tenants so each receives a portion equal to their share. If the court is unable to equitably split up the land, then partition by sale will be used. (b) In partition by sale, the court forces the sale of the property and each co-tenant receives their share of the profits. Unfortunately, no matter what, your son's mother will still retain her 50% interest in the property although you can pursue several different ways to terminate the JTROS. Please let me know if you have any further questions and please positively rate my answer if satisfied. There should be smiley faces or numbers from 1-5 to choose from. This extra step will cost you nothing extra and will ensure that I will be compensated for my time by the site.
Customer: replied 5 months ago.
What would be the benefit in transitioning into a tenancy in common? My goal is to keep my home but I do not wish to share it with her any longer.Regarding the tenancy in common, would I be able to attain greater property rights based on the fact that she does not equally share the expenses and has partially abandoned the home? I have heard that it may be a matter that I could take up with the local magistrate's office. Is that correct?Additional side note: I re-financed the home about 6 months ago in order to help cover the bills and split the cash out with her of which her part was $13,000. She blew the money within 6 weeks and I have found drugs in my home in recent months that she has been using. Could this help me at all??
Expert:  Christopher B, Esq. replied 5 months ago.
1) If your goal is to take back ownership of the home, transitioning to a tenancy in common would not do much good. The only difference would be that you would basically own 50% and she would as well. The property would not automatically go to each party at the death of the other. Your 50% would pass to your relatives and not go to her essentially. 2) No, you would not have greater property rights and it does not matter who pays the bills, the house is owned jointly and you both essentially own it equally. It does not matter if she does not live in the home and you cannot take it up with the courts. Essentially just because you no longer want her to own part of the property, you cannot "wish" ownership away from another party. She owns it jointly with you as her name is ***** ***** deed. The only way to get it back is for her to deed her portion back to you either by gift or sale.3) This could be considered a sale if you structured it in that way. With no written contract to this effect it is unlikely though. Transfer of property must be in writing and just because you gave her funds from the refinance of the house does not mean she gave up her rights to ownership unless it was agreed upon in writing. Unfortunately this was an opportunity to get her name of the deed in exchange for the equity. You can possibly ask her to deed her portion to you because of this transfer of funds but she would have to agree to do so.
Expert:  Christopher B, Esq. replied 5 months ago.
Just checking back in, do you have any further questions?

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