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Dimitry Esquire
Dimitry Esquire, Attorney
Category: Real Estate Law
Satisfied Customers: 41221
Experience:  JA Mentor, multiple jurisdictions, specialize in business/contract disputes, estate creation & admin
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A single family home is held tenants in common. I have $180,000

Customer Question

A single family home is held tenants in common. I have $180,000 cash invested and $312,000 gift from my cotenant partner. He was required to gift his down payment to me as he could not be part of the mortgage, neither as the borrower or co-borrower. I qualified for the $340,000 mortgage. We were going to live in the property together...he scammed me. He had another lover while he bilked me out of my $180,000 cash and my obligation to the mortgage. I never lived in the property. I felt comfortable in being responsible for the mortgage because of the $312,000 gift. We are now in litigation. The Grant Deed is 50%-50%. I intend to file a Petition for Judicial Partition. My million dollar question: After paying the expenses of the sale and the first mortgage of approximately $320k, do you think I am entitled to recover my $180k plus my gift (which is in writing and made part of the closing docs) of $312k before splitting the net proceeds from the sale.
Submitted: 2 years ago.
Category: Real Estate Law
Customer: replied 2 years ago.
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Expert:  Dimitry Esquire replied 2 years ago.
Thank you for your question. Please permit me to assist you with your concerns.
The answer that I will provide will likely not be favorable so I ask that you do not blame the messenger. A 'gift' is just that, a gift, and regardless on the reason as to why it was provided, it is not refundable. Likewise your original investment does not matter if a property is purchased by one, both, or other parties outright, what governs is how title is written. Since it is 50/50, short of proving fraud you would not be entitled to the refund. Now, if the DA files criminal charges and convicts him, you can use that information and proof to disqualify the investment as based on fraud, and then you would be entitled to the return of the investment amounts.
Sincerely,
Dimitry, Esq.
Customer: replied 2 years ago.
Dimitry,I believe I may have not been clear as I believe your answer did not follow my question. I am the one who received the gift of $312,00 and I invested $180,000, and I am sole mortgagor on the 1st mortgage loan. His only interest in the property would appear to be his 50% of the net proceeds after paying selling expenses, the first mortgage, and the return of my investment of $180k plus $312k. Is this explanation clearer?
Expert:  Dimitry Esquire replied 2 years ago.
Hi,
That does help, thank you. But to be clear, this property is under both names as 50/50 ownership, correct?
Customer: replied 2 years ago.
Correct.
Expert:  Dimitry Esquire replied 2 years ago.
Hi,
In that situation my answer still won't change. Unless you were fraudulently induced into making the deposit, it does not matter if one person buys the whole property but places two names on it, or both equally invest, both are entitled to receive a proportionate share of the profits from the sale. Therefore if you invested $180k of your own free will, you are not entitled to get it back. The whole value of the property is split between owners. You are entitled to get your gift back only if it is a loan, or if you can prove fraud. Otherwise your investment won't be returned .
Sincerely,
Dimitry, Esq.