Welcome to the RealTown Real Estate Network!
Member Login | Join RealTown
The Real Estate Network

Breaking Joint Tenancy

no

September 04, 2010

Hello Mr. Bickel, I had owned a property with a realtive in joint tenancy with full right of survivorship in Council Bluffs Iowa since 2003. A month ago, the other joint tenant died. Before she died, she tried to break the joint tenancy in 2008 by quit claim deeding her portion of the property to herself. After she died, I contacted the local court house and they told me to file an affidavit of surviving joint tenancy; which I did. Her name was removed and I thought I was the sole owner. Int he meantime, the other joint tenant's estate was opended and the executor of the estate felt that the estate had an interest in the property. I went to assess the property and the estate's attorney issued a restraining order prohibiting me from accessing my own property.

Is it legal or valid for one joint tenant to quit claim deed their portion of a property to themself in order to break a joint tenancy. I know laws differ from state to state. This just does not mae sense and not attorney I sopke with has been able to anser the question. I contact the local law library and the librarian could not find any case law to support such an action.

MO

September 05, 2010

I am no attorney but How exactly is the property titled? There must be something in the way the property is titled.

Have you consulted with the company that holds the title insurance and the company who handled the closing?

Another source may be to contact the State of Iowa http://www.iowaattorneygeneral.org/ and find out the direction to take the issue. They can provide you with the proper resources to contact.

Not saying your situation is the same but, I know of cases in Northeast Iowa where a small bank trustee, attorney, and another person were involved in situations involving death of individuals with estates. Fortunately, the friend of mine had an attorney son who knew a good attorney in Iowa. Long story short, Iowa Attorney General got involved and several people are in jail.

MO

September 05, 2010

Lisa,

Below is a suggestion from someone more knowledgeable than I regarding Iowa Real Estate. Bottom line - you need a lawyer specializing in estates and real estate ASAP!

Get a copy of the original deed from the County Court House. It will state the tenancy. Assuming it is Joint Tenancy with Right of Survivorship, then upon death of the other tenant the property transfers to you. For the now deceased individual to break the joint tenancy requires consent of both parties or a court order severing the joint tenancy.

Licensed Real Estate Broker

Kailua-Kona, HI

September 05, 2010

Hello Lisa,

While real estate agents may know the answer to your question in the states where we practice, you are looking for a legal opinion. Based on the way you structured the information, it appears you believe you have a claim to your relative's portion of the property and would like to pursue that claim. While we are real estate experts, not legal experts. We cannot give you a legal opinion.

It is not unusual for a person to keep asking different people the same question until they get the answer they want to hear. It all means nothing until you have that legal opinion. Spending a couple hundred dollars now to find out if you have legal standing may save you thousands of dollars later. Restraining orders are issued by a court, the attorney only requests one.

In my expert real estate opinion, you need a real estate attorney. The best attorney I know once asked me, "Where did you get the idea the law was either fair or logical?"

Stop trying to find answers in a book or on the web. Stop asking your friends. Stop trying to represent yourself. If you cannot afford an attorney, go to legal aid.

Sincerely,
Joyce Murphy RB

Licensed Real Estate Broker

DC

September 05, 2010

One accepts a quit claim deed at their own risk and one can only transfer their INDIVIDUAL interest by way of that deed.

In joint tenancy, each person has an undivided interest in the entire property, which to the best of my knowledge can only be divided by a Petition to Partition the property. If one could convert a joint tenancy into a tenancy in common by merely filing a quit claim deed, then suits to partition would be unnecessary, wouldn't they.

The idea of checking with the Office of either the Attorney General, of the State's Attorneys Office is a good idea, to which I would ad that Iowa has one of the best law schools in the nation. They probably have a 'legal clinic,' but the certainly have outstanding property professors who MIGHT answer your question. Call the school and ask who teaches both real property and future interest and then speak to them.

Good luck.

Reply to Discussion

Please log in to post a reply to this discussion.