Can a remainderman be affected if a life tenant mortgages the life estate and then defaults on it?

When my grandmother died 14 years ago, I was 8 years old. She left me a house where my mother and I lived. My mother was to have a “life estate” in the house as long as she paid the taxes, kept the property up and didn’t move from the house. Somehow 8 years ago, when I was only 12, she was able to get a mortgage. She defaulted and they foreclosed on the house about a year ago. I was confused as to how she could have gotten a mortgage on it anyway let alone how I could loose my house when I didn’t agree to the mortgage. Last week I received a summons for civil court when the mortgage company realized that the title was not clear and they want myself and the executor to sign off on it. Is there anything I can do to get my house back?

Asked on September 4, 2014 under Real Estate Law, Virginia

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

The mortgage may not be valid: a property in which there is a life estate cannot generally be mortgaged unless both the life tenant(s) and the remainderman(men) agree to and sign off on the mortgage. If the  mortgage is not valid, there will be no security interest in it--it cannot be foreclosed upon--though the life tenant would be personally liable for the debt. The fact that a mortgage was granted in error should not make the mortgage valid and enforceable. That said, these arguments can be rather "technical" to make properly; you should retain a real estate attorney to represent you to protect your interests.


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