What is my recourse in getting equity due to me?

A year ago my non-marital partner and I own a house together, and we split up. He re-mortgaged the small remaining balance in his name, and kept my name on the deed as owner. I was trying to be kind so he did not have to leave the house. However, prior to leaving we disagreed on the fair amount due me once I discovered the true value of our home, around $385,000. He decided on his own to pay me $1,000 a month for 5 years and a lump sum of $50,000. He makes the monthly payment, but only paid me $20,000. I did not agree to this and I told him I only wanted what was fair.

Asked on September 18, 2012 under Real Estate Law, New York

Answers:

Mark Siegel / Law Office of Mark A. Siegel

Answered 8 years ago | Contributor

Under NY law, certain parties, including tenants in common & joint tenants with a right of survivorship, can start an action for partition & sale. The Court is empowered to judicially order the sale of real property. The Court also has the power to appoint a referee to conduct an accounting, which determines the respective contributions of the co-owners for maintenance & upkeep of the property, & how the sale proceeds should be distributed after the court ordered sale.

If the property could be legally rented to a tenant, but for the occupancy of one co-owner, the other co-owner might try to have the referee consider the other co-owner's loss of rental income, during the accounting by the referee.

In many cases, each owner will have an appraisal performed by a certified property appraiser, in order to establish the appraised value of the property.

When the referee completes the accounting & has reviewed each co-owner's admissible evidence & documentation (including satisfactory proof re: mortgage payments, taxes & the payment of other expenses), the referee submits a report to the judge, stating his or her findings & conclusions. The judge can confirm or reject the referee's report, or send the matter back to the referee with specific directions from the Court.

Of course the parties can try to negotiate a settlement of the matter, which may result in either: a transfer of one co-owner's interest to the other for a mutually agreed price ("buy-out" agreement), or a mutually agreed sale of the property to a creditworthy third party, where the co-owners have reached an agreement as to what proportion of the net sale proceeds will be paid to each co-owner.  

You may wish to seriously consider retaining an attorney who practices in the area of real estate litigation. This is a complex legal matter, which requires proper evaluation & representation by an experienced attorney based upon the particular facts & law.


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