07/08/08: Boyfriend and Girlfriend are No Longer
By Benny L. Kass
Q: My girlfriend and I bought a condominium together about two years ago. At first everything was beautiful and nice until our relationship ended. I moved out from the master bedroom to the spare room so we can live as roommates. Unfortunately the situation went from heaven to hell. She started to make my life miserable. I lost my job for lack of sleep and because of all the stress. I even had to call the police several times. I moved out last month because she brought her daughter to live with us and now I have to deal with her as well
We both are on the mortgage loan. I tried to sell her my share, and even offer to pay any capital gains tax on any profit we may make if we could sell the house, but she rejected all of my suggestions. My credit so far is good and I do not want to damage it. How do I get out of the loan? I don’t want anything back; I just want to get on with my life and live in peace.
A: You should have had a written “partnership” agreement with your girlfriend before you took title to that condominium unit. Such agreements would include issues such as who will make the monthly mortgage payments, what happens if one co-owner is unable to contribute financially, and – more importantly – how to resolve situations where one person wants out of the deal.
I suspect that when you were considering buying that apartment, you and your girlfriend just wanted to be together, and live happily ever after. You never thought that you might eventually break up.
But things happen in life. When you are dealing with a major financial investment such as real estate, you have to enter into that relationship with your eyes open and with a full understanding – memorialized into a written document – of all of the negative possibilities.
It’s obviously too late in your situation to have such an agreement.
Here are some suggestions.
First, review how you and your former girl friend hold title to the property. In your situation, since you are not married, there are only two possibilities: tenants in common or joint tenants with rights of survivorship
In the latter situation, this means that the two of you own the condominium jointly. Should one of you die, the survivor will own the entire property, and no probate will be required.
In a tenant in common arrangement, each of you own a divisible interest in the condominium. It can be 50-50, or any other percentage. Often the percentage is based on the amount of deposit that each of you made when you went to settlement and the percentage you will pay on the mortgage.
If the property is held as joint tenants, I suggest that you retain an attorney and immediately arrange to change the title into a tenant in common arrangement. You have the right to do this without consulting your partner and without her consent.
Why make this change? Because should you die suddenly, she will own the entire property and your heirs (your family) will get nothing.
That may have been your intentions while you were still talking to each other, but I doubt that is what you want to happen now that you have split up.
Next, make sure that the mortgage payments – including real estate taxes and insurance – are being paid and are current. If your ex is not willing to share this information with you, contact the mortgage lender. Explain the situation to the lender and request that you be immediately notified should there be any problems. The lender should be provided with your new mailing address and phone number.
Finally, you should try to have a conversation with your co-owner, to discuss your situation and reach an amicable resolution. If she is unwilling to met with you, then you will have to retain legal counsel and file a lawsuit for partition.
Partition is a matter of right throughout the United States. Our Courts have long made it clear that they will not force two or more people who own property to continue to hold that property when there is a dispute and one of the owners wants out of the transaction.
The Court will, upon the request of one of the property owners, order that the property be sold. It can be done through a public sale in the Court House or by a private sale using agreed upon (or court appointed) real estate brokers.
Partition should be your last resort. The only winners are the attorneys for the owners and the speculators who will try to get the lowest possible price for the property. But the threat of partition may spur your ex-friend to be realistic. If she has the financial capability, she should consider refinancing the unit. That is the only way that you will be able to get your name off of the loan. If she merely buys you out, you will still be legally obligated to your mortgage lender.
You are in a difficult, troublesome situation. Next time, talk with your future co-owner and reach agreement on as many issues as you can, so as to avoid similar legal problems in the future.