Full question:
My husband and I are co-borrowers to a real estate property, which we purchased in the middle of March, 2010. My husband's mother is the borrower. The deed is Right to Survivorship. We moved out of the property on August 8, 2010. The mother moved out towards the end of September without notifying us and called the mortgage company and told them that she was surrendering the property to them, without our knowledge. Because she abandoned the property and is willing to let it go into foreclosure, resulting in affecting my husband's and my credit, can we sell the property without her consent? What is the proper legal channels, when we don't know where she has moved? We have asked her on multiple occasions to list the property for sale. She wanted to be the one to decide who to list the property with, which we agreed to. She tried to talk us into signing a Quit Claim Deed, and stated that she would put in writing that we were no longer responsible for the mortgage in order to have her other son and his wife move into the property. We spoke with the mortgage company and was told that it didn't matter if she put in writing that we were not responsible for the mortgage, due to the fact that we were on the loan, we would still be responsible. She said that she was going to live in the property with the other son and daughter-in-law. When we told her that we wouldn't sign the Quit Claim Deed, due to the fact that we would still be responsible for the mortgage, but the mortgage was Assumable and we were willing to allow the other son to assume the loan, she then told us that she was moving out of state (but did not tell us a time-line or notify us when she did even though we asked for her to do so)and that she would just let the home be foreclosed upon and our credit could be ruined, since we refused to do it the way she wanted us to.
- Category: Real Property
- Subcategory: Partition
- Date:
- State: Arizona
Answer:
When property is owned as joint owners with right of survivorship rather than tenants in common, all owners are required to sign a deed to transfer the property. It may be possible to bring a partition action. An action for partition usually arises when there is a dispute as to how to divide property, or in a dispute as to whether property should be sold. One co-owner of real property can file to get a court order requiring the sale of the property and division of the profits, or division of the land between the co-owners, which is often a practical impossibility. Normally, a partition order provides for an appraisal of the total property, which sets the price for one of the parties to buy out the other's half. The amounts claimed for past rent may be settled as part of the partition action.
It may be possible to get alternative or substituted service, such as service by publication. If you are unable to locate a defendant and can show to the court that you have made reasonably diligent attempts to do so, you can ask the court’s permission to serve the lawsuit by ‘publication’ as a last resort in some states. Service by publication involves running a notice of the lawsuit in the local newspaper for a specified period of time. After the final notice has been published, the defendant will be deemed served, despite not having actual notice. Service by publication will only be granted if you can show that the defendant’s address cannot be found. Locating the defendant, their place of employment, and/or location of their assets will still be needed to collect on a judgment. I suggest calling the clerk of courts, as rules for substitute service vary by court.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
