Q: My mother put my brothers and me on the title to two properties in two different states. My mother’s lawyer recently told her she has no claim to the properties – they belong to the 3 of us.

One brother is living in one of the properties (my other brother and I did not agree to this). My other brother and I want to sell the properties, but are certain that our brother will not agree to this.

What are our rights as far as selling the property or at least being able to use it equally with our brother who is living there? Can we force him to sell or at least buy us out (he has no job and no money!)?

There has been family history of him taking advantage of every situation he can. My brother and I would also like to sell the other property. Any advice would be greatly appreciated.

A: If you and your one brother wish to sell the property, your first course of action would be to negotiate with your brother a solution. If you can’t negotiate a solution, you can bring a lawsuit against your other brother to force him to sell. You would need to hire an attorney with experience in partition suits. That is, a suit to partition the property and force the sale. You effectively go to court and ask the judge to settle the dispute for you. If the judge sees that no resolution is possible, the parties can request that the judge order the sale of the property.

A partition suit, as with any litigation, will cost time and money. During the litigation, you can also force your brother to pay his share of expenses for the home that he has failed to pay over the years. His share of the property expenses can be deducted from the total he is due (before it is paid).

Before attempting to litigate the matter, perhaps you can get him to agree to sell you the property outright for a certain amount of cash.

A second alternative is to swap properties amongst the three of you. Since there are two properties involved, you might be able to trade his interest in the property he does not live in for his interest in the property he does live in. If the two properties are roughly equal, this might not work unless you attach some additional money to the deal, but if the other property is more valuable, perhaps he will make the trade and you and your other brother will be able to sell.

Your question really points to the dangers of parents putting property into their children’s hands before they die. Your mother was probably trying to either minimize estate taxes or perhaps protect these properties from having to be sold to pay a nursing home bill down the line.

In fact, what she has done may likely split her family in half. I can’t imagine you and your brothers all sitting down together for a holiday meal, with you feeling like your brother is cheating you.

Please talk to a real estate attorney for other options and an explanation of how you would proceed legally, if you choose that direction.

March 13, 2009