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Proving Home Ownership

Ask the Real Estate Lawyer: Real Estate Law Q&A

REM #LAW 716

By Ilyce R. Glink and Samuel J. Tamkin

Summary: A reader purchased a home with the help of his mother a few years ago. His name is not on the deed but he has lived in and improved the home. Ilyce and Sam explain to him the legalities of determining a home's owner.

Q: A few years ago I purchased a house. The house wasn’t habitable because it didn't have a heating system, so I couldn't get a mortgage.
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I put money down at closing and my mother provided the rest. However, the deed is only in her name.

I am thinking about moving and need to prove that I own this property. I did all the work on the house and it is worth considerably more than when it was purchased. My mother has never lived in the house.

What is the easiest way for me to prove ownership without paying real estate transfer taxes? Does this tax even apply to family members? If I can prove that I put money down does this make me an owner even though I am not on the deed?

A: If you’re thinking about moving and selling in the near future, the most important thing for you is to make sure your mom and you are in agreement as to where each of you stand with regard to the property.

If your mom agrees that the house is yours, you should be in good shape. If she decides to make the claim that she owns the house outright, you’ve got a rough road ahead of you.

But let’s start at the top: You should have documented your arrangement better. The deed should have been made out in your name if your mother provided you with the money to purchase the home.

If your mother had to take out a mortgage to help in the purchase of the home and she was required to be the only person on the title to the home, your life got complicated the day the property was purchased.

If the true intent of the transaction was for you to be the owner of the home, you should have taken title to the property early in your ownership of the home. To deduct interest and real estate taxes, you need to have been the owner of the property or otherwise have some legal ownership right to the property.

Since it does not appear that you have had this ownership right, you might have a problem when you sell the property.

To avoid paying federal income taxes on the sale of the home, you needed to have owned and lived in the home as your primary residence for two out of the last five years. If you did, you could exclude $250,000 in gains (or $500,000, if you are married). But if you did not own the property and have gains on the sale, you may have to pay taxes on the gains.

If you don’t mind the tax issue or are not selling at this time and just want to get your things in order, you can have your mother quitclaim the property to you. In many places, the transfer of title to a home when no money is being exchanged can be done without triggering a transfer tax.

A transfer tax is generally a tax on the sale of real estate. In some places, the tax is a flat fee and in others it is a rather hefty sum of money based on the sales price for the real estate.

If your mother bought the property for you and paid for it, you should have been making payments on the “loan” to her. You said you put down the initial down payment in cash.

Since you purchased the property, you should have been making additional payments for the money that was used to buy the home. If you have, you should have sufficient information to prove that the initial funds for the purchase and subsequent payments to your mom closely resemble a loan transaction and the current transfer of the title from your mom to you is as a result of the final payment to your mom on the loan she made to you, akin to the final payment on an installment contract for the deed to the home.

If you have this documentation, you probably shouldn’t have to pay the transfer tax. That’s because your taking title to the home now satisfies the debt that you have paid or because your mother is transferring title of the home to you and is not receiving payment for that transfer.

Please check with the recorder of deeds in the county in which you are located to find out what exemptions are allowed and then determine which one best describes your situation.

If your circumstances are more complicated or you are running into roadblocks, you should hire an attorney to help you sort through the documentation and your options.

Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce R. Glink’s latest book is 50 Simple Steps You Can Take To Sell Your Home Faster and For More Money In Any Market. If you have questions for them, write: Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022 or contact them through Ilyce’s website




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