Expert: liznarr - 3/19/2005

Question
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Followup To
Question -
Liznarr, I am in Michigan and co-own a home in Florida that I want to sell. Can you answer questions about real estate in Florida?
Thanks,
Moya
Answer -
Hi Moya,

I can answer questions about real estate generally, and most of the questions I receive on the All Experts' site are from other than my home state.  I do not know particulars about other states' market values, but other than that, I might be able to help you.

Let me know what your concern is, and I'll see if I can help.

Thanks,
Elizabeth Narr

Elizabeth,

I co-own a home in Florida as a joint tenant, originally. The other person made a new deed with she and her daughter as joint tenants. They then obtained 2 mortgages on the house without my signature. Can you do that in Florida? I want to sell and may have to force partition.
Thanks,
Moya

Answer
Hi Moya,

Joint tenancy has several elements for ownership, and ALL elements for joint tenancy must be met at the same time – and this includes the creation of joint tenancy.  For two Joint Tenants to add a third person and REMAIN in Joint Tenancy, everyone's interest must be conveyed to a third party (usually a Trustee), and then REdeeded to all three as Joint Tenants.  The way this “other person” added her daughter severed your joint tenancy – and you are now all Tenants in Common.

Another element required for Joint Tenancy is that all tenants have EQUAL shares.  By the “other person” selling or conveying half (I assume) of her 50% interest to her daughter, they now each own 25% interest, and you own 50% interest.  Therefore, another element of joint tenancy has been destroyed.  Again, you are now all Tenants in Common.

Now, as to these other two parties obtaining a mortgage on the house without your signature or approval, this does not sound right at all.  I cannot imagine any bank or mortgage lender making a loan on property without having done a title search (which should have clearly shown your ownership interest) and then proceeding with a mortgage and not requiring ALL owners to sign for the loan.
In some states, after an “involuntary transfer of title,” a joint tenancy is severed and a creditor of one of the joint tenants can reach only that tenant's share.  I am not sure, however, about a “VOLUNTARY” transfer which was the case in your situation.
A question I have is, ‘Is the mortgage created by these other two persons in excess of 50% of the value of the entire property?'

I could go on and on about different things, but it definitely sounds like you need some good legal advice.  Before you hire any attorney, make sure you're dealing with a good, reputable attorney.

For starters, I would get a copy of the two mortgages placed on the property and call the bank or lender who issued the mortgage and ask some VERY pointed questions.  Be sure and get names of any persons you talk with.

Get as much information together as you can BEFORE you talk with a FLORIDA attorney.  This will save you some money by the attorney not having to do some of the research you can do yourself.

Here's a link to the Florida Bar Online.  At the bottom of this page is a number that you can call for information and referrals.   http://www.flabar.org/tfb/TFBConsum.nsf/0/ad83f16f6f1b3a3085256b2f006c5ea5?OpenD

Good luck to you, and write again if you have additional questions.

Regards,
Elizabeth Narr