Q: I have a horrific situation not for the faint at heart. We are two brothers fighting worse than in a Spanish bullring. Animosity exists between my older brother and my wife. He enjoys the comfort when he comes to town to stay as long as he wishes in the basement of our two-flat and collects rent from the first floor.
I live with my wife on the second floor, and we want out of this situation. What once was a family two-flat has now become a mixed-unit family two-flat and an income-producing property for my brother.
We need a way out, but he will not agree to any definite timeline. What I am left with is an unhappy wife and an unbearable situation. Can you suggest what is the cost of a partition? How guaranteed are we that the judge will give an order for partition, and what is the precise cost we will incur with a lawyer?
A: Partition is a matter of right throughout this country, although different states have different rules and procedures. When two or more people own property, and someone wants out of the transaction, they either have to reach a friendly (out-of-court) agreement, or file suit in court for what is called partition.
The word speaks for itself; the court will force the sale of the property. Typically, the court will authorize a real estate broker to work on the sale or, in some cases, the court will hold a good old-fashioned auction in the courthouse.
From my experience, the only winners are the lawyers and other professionals who get involved in the sale.
I have been involved in a number of such lawsuits. Typically, the mother dies, leaving a house for son and daughter. Son lives in a different state and wants to sell, but his sister has been living in the house for several years. So the brother files suit against his sister to force the sale.
I suggest you retain a local real estate attorney. If the lawyer believes you have a case for partition, have him or her send a strong letter to your brother, explaining that you plan to file such a lawsuit unless you can reach an amicable resolution.
You should make a reasonable settlement proposal in that letter. The letter should explain, in the simplest terms, the negative ramifications of a partition lawsuit. Sometimes, the threat of being taken to court as a defendant acts as a spur to reaching agreement.
There is a lesson in this for anyone planning to own property with another person who is not your spouse. Enter into a written agreement before you take title, spelling out such things as what happens if I want to sell; what happens if I die; what happens if I cannot afford the monthly upkeep.
A good attorney will be able to assist you in preparing an agreement.
Q: I have poor credit, make $105,000 annually with $40,000 in yearly debt. I want to borrow $20,000 in a home equity loan or line of credit. My house is appraised at $275,000 and I have no mortgage. I am looking to pay off the balance in 90 days. Can you advise?
A: You are not alone. I know that banks have significantly tightened their loan requirements, but you have no mortgage and clearly some bank should be willing to make you a loan.
If not, are you 62 years or older? While I am not a real fan of reverse mortgages, that is one way of getting the cash you need.
Finally, if all else fails, you should contact what is known as a "hard money lender." That is a lender who, to compensate for the risk, will charge you a high mortgage interest rate. There are legitimate hard money lenders, and there are many not-so-legitimate lenders.
If you really need the money and have to go to such a lender, I strongly advise you retain a lawyer who can review the transaction to make sure you are protected. I have run across some lenders who end up taking your house instead of lending you money.
Benny L. Kass is a practicing attorney in Washington and Maryland. No legal relationship is created by this column. Send questions to firstname.lastname@example.org.