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-   -   Title of home question (https://www.ottawadivorce.com/forum/showthread.php?t=6137)

KanataKathy 01-27-2010 09:42 AM

Title of home question
 
Last fall, I sold my townhouse in Kanata and bought a detached home with my boyfriend, putting the proceeds of the sale of my townhouse towards the new house. Due to a long-term illness, my boyfriend didn't have anything to put towards the downpayment on house, but he did pay the inspection fees.


The real estate lawyer suggested that, because we both had children from a previous marriage, the ownership of the house should be 'tenants in common' rather than 'joint-tenants', so that our respective estates would go to our respective children, to which we both agreed.


However, in reviewing the paperwork and the transfer, the deed transfer indicates next to my name "Tenants in Common" with a share of 75%, and next to his name, "Joint Tenants" with a 25% share. I was quite specific in asking the lawyer ensure that the proceeds of the sale of my old townhouse are indeed mine, should the relationship go south (or to my kids, should I pass on).


We just had our first couples counseling session last week. In the event that the relationship deteriorates further, should I be going back to the lawyer to have the deed corrected? If we do end up selling the house, I'd like to get back the money that I put into it.

I do have all the receipts to show what I paid for.


DADCANTWIN 01-28-2010 09:33 AM

Im in a similar situation as well. The way it was explained to me is that.
a) common law works a bit different . Anything that is titled, remains that individuals property after seperation with the exception of a home.
b) the home should be set up like you say tenants in common and have your boyfriend pay you rent by check.
c) have a seperation agreement drawn up before it has been 3 yrs. OR if you have kids together.
d) WHY are you worried about going back to the lawyer. IF his feelings get hurt...TOO BAD! That should further indicate to you to get it done proper.

KanataKathy 01-29-2010 12:36 PM

Thanks, DCW. I plan on going back to the lawyer to see if it can be easily corrected. Not worried about hurt feelings - it was agreed to prior to buying the house.

KanataKathy 02-12-2010 11:16 AM

Just an update...
I went to another real estate lawyer, just to gather more information before seeing the original lawyer who handled the purchase of our house.

He was of the opinion that, in the event of a split, the 25% share would go to my boyfriend, despite the fact that I came up with the complete downpayment and can prove it. He indicated that the 'legal presumption' would be that the 25% share was a 'gift' to my boyfriend...

He suggested the name of a litigation lawyer, but also thought that if push came to shove, we would be making two lawyers very happy. Not sure how to proceed with this information...

boxer12 02-13-2010 02:39 PM

I purchased a home a year before getting married when we were engaged. She did not move in til the wedding. After 9 months she left. Six months later she had our daughter. We have not been to court and I have lots of visitation and am still living in the house. What happens if I decide to sell. Is she entitle to half. Also the house is valied at 145000 with a mortgage of 121000

KanataKathy 02-16-2010 12:52 PM

Boxer12;

Married is married. Unless you had a written agreement in place, I *believe* the house is considered to be the matrimonial home, and both of you are entitled to half.

You might want to check in the other forums. This one deals with common-law issues.

.K

KanataKathy 01-13-2011 12:33 PM

As a result of my case conference, I thought I should update this thread for the benefit of others who might find themselves in a similar predicament.

Things deteriorated between the two of us, so much so that my teenaged son decided to move in with his father. I tried to negociate a cohabitation agreement based on our original verbal agreement, but he wasn't hearing any of that. Without my son there, I decided there wasn't any point in staying as my ex-BF was being quite nasty, so I moved out as well.

We both agreed that it would be best to sell the house, and he did say he would honour our agreement that, after the house was sold, we would split the increase in the cost of the house (ie the profit) 75/25%. However, he felt that I should have to assume the real estate costs and the costs associated with paying out the mortgage, to which I refused.

I retained a lawyer, who sent him several letters asking him to vacate and asking for occupation rent, which he managed to ignore for almost 2 months. He finally retained a lawyer, who claimed that he had a right to 25% of the total equity in the home, based on the title. So my lawyer served him with papers, in the Application asking for sale of the home, with me being reimbursed my original contributions as a priority, and occupation rent. In the Answer, he made a claim for 25% of the total equity in the home as well as damages, but did agree that the house should be put up for sale.

At the case conference, after the two lawyers presented their briefs, there was a little bit of horsetrading on creating an order to sell the house. When it came setting a listing price for the house, I had a lower number in mind, for a quick sale, while he had a high number, based on an appraisal as well as an estimate from a real estate agent. The judge settled on a listing price that was between the low and high numbers, and also decided that if an offer was made on the house that was +/- 5% of the listing price, the offer had to be accepted by the parties.

The judge also noted that it was a given that my original contribution to the sale of the house would be paid out as a priority, after RE fees, closing costs, paying out the mortgage, etc. He then commented that, should the house sell for -5% of the listing price, my ex-BF would only be eligible for 25% of any monies remaining afterwards, which he observed could end up being zero! He would get back his house inspection fee, which he had paid.

The judge further went on to say that if the other side decided to argue the case in court, they would lose, likely through a motion of summary judgement. He also went on to say that the other side may have to pay costs. The judge recommended that we settle. He then said there was some risk to me if there were merit to his claim for damages. My lawyer said that the other side will likely be more inclined to settle, based on the terms of our original verbal agreement, given the recommendations of the case conference.


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