Legal Question in Real Estate Law in Virginia

Forced Sale of Home Threat by Lawyer

My sister is co-owner of a home in Virginia with my mother. Both names are on the title. My mother has Alzheimer's and an attorney(in NY State where my mother currently resides) who has written on my mother's behalf a threatening letter stating that he will begin proceedings against my sister, force the sale of the house and levy all financial charges against my sister in the process. Nobody is living in the house. He stated that it was only a matter of convenience that my sister's name was on the title.

First of all, does this attorney have a leg to stand on if my sister does not wish to sell the house?

Can a charge be filed against the lawyer for unethical behavior due to the fact that he has been presented with the information that my mother has Alzheimer's and is under undue influence?

Thanks in advance for your advice!

Asked on 1/16/08, 12:25 am

2 Answers from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Re: Forced Sale of Home Threat by Lawyer

I cannot answer for Virginia law, and I hope a Virginia attorney will step in and provide a response as well, but the following information is based on California law, which is probably pretty much duplicated by the laws of most other states.

There is a general principle that co-owners of real estate (other than married couples) need to have an exit route when one of them is unhappy with the co-ownership situation for any reason. There are dozens of reasons why co-owners might want to get out. Siblings who have inherited the family farm is a common situation. Another is boyfriend-girlfriend home purchases together, after the relationship goes sour. Also, speculators who buy a run-down place in partnership to fix it up for a profit (X puts up the money, Y does the work). When the time comes to sell for one co-owner, there needs to be a way out.

That way out is a lawsuit for partition. Partition got its name in the old days, when most people lived on farms that could be split between the feuding co-owners. Physical division of real property is seldom possible any more, so courts faced with partition lawsuits usually order the sale of the property and division of the net proceeds (after paying off loans, taxes, liens, expenses of sale, and adjusting for unequal contributions of the former co-owners for purchase price, mortgage, tax and insurance payments, and certain necessary repairs.

In your case, I would say your mother is well within her rights and will probably win. Your sister will get cashed out appropriately after the sale. The lawyer doesn't seem to be doing anything wrong; announcing an intention to invoke a co-owner's right to seek partition is entirely appropriate. How would your sister feel if she were served with the suit without any prior notice?

Whether your mother has been unduly influenced by anyone is a separate question, and could be a defense to the partition suit, but it seems quite farfetched to me. Undue influence challenges are most effective when brought against parties who stand to benefit unfairly from, say, a deed, will, or contract. Here, a court will be asked to sell a real property and make a fair division of the cash proceeds. Where is the undue influence benefit?

Further, Alzheimer's itself does not signal a person's incompetence to contract or sue. It is possible, but unlikely, that a court would dismiss a partition suit on this basis.

Finally, in general I think a court would be inclined to think partition by an elderly lady of vacant (!) property in another state would be a darn good idea. She probably needs the money more than a non-perfoming investment. If I had a concern, it would be that she may need a conservator to administer the proceeds of sale wisely.

The partition in Virginia will probably have to be handled by another lawyer, unless the NY lawyer is also licensed to practice there.

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Answered on 1/16/08, 11:38 am

Susan Allen The Law Office of Susan E. Allen, PLLC

Re: Forced Sale of Home Threat by Lawyer

It does sound like this attorney is seeking a partition of the property. In Virginia, one tenant may force the sale of the property via a partition sale. There are a number of procedural hurdles to go through before a partition may be granted, and there is another layer to work through given your mother may not be competent.

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Answered on 1/23/08, 4:15 pm

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