Legal Question in Real Estate Law in Massachusetts

Re: Petition to partition of property

The answer is that once P changed the conditions by adding you as a joint tenant. You are entitled to the value of the joint tenancy. That someone decided to add you on as a co-tenant, was a knowing act, and by the knowing act, the transferror, knew or should have known that should something happen in the future, he must abide the by the language of the deed.

The judge should not read a contribution as an offeset. There was never an agreement that said that the transferror retains the right, should something happen in the future, to get his money back. Moreover, there is no marriage, and the transferror's adding you on the deed, is essentially a gift of the value of the property. Once a gift is tendered, and the person who accepts the gift, there should not be a look back to see if some conditions could be now imposed. By asking for the value of the gift as an offeset, the court is nullifying the intent of the original gift, and creating a conditional gift, that is in effect only so long, as some condition exists. Where no contigency was made or created, then the court should view this gift as having been completed, and hold the person who made the gift to the original intent.

You have not told me what court this matter is being heard, and what type of legal action is pending, and where. THis is information would be useful in my analysis of this question and the issues.

This may be a little technical, but if you don't understand what I am saying, or you want to contact me, please do so at 978.749.3606.

Re: Petition to partition of property

There are two legal arguments that can be put forth in your case, the first being that was made was intended as a gift to you and that while MA does not recognize common-law marriage, it should contemplate the intent that this was a gift and not merely a convenience for your former partner. Unfortunately, there is a counter argument:

�It is well settled where one provides the entire purchase price for the property but causes title to be transferred to another, a presumption arises that the latter holds the property on a resulting trust for the one who provided the entire purchase price.� �442 Restatement of Trusts 2d, p 3336-7. "[W]here a transfer of property is made to one person and the purchase price is paid by another, a resulting trust is presumed in favor of the person by whom the purchase price is paid. . . . But where the transferee is the wife of the person by whom the purchase price is paid there is a presumption that a gift was intended. . . . However, this presumption is rebuttable and the husband can establish a resulting trust by proving that it was not intended at the time of the transfer that the wife should take a beneficial interest in the property by way of gift . . ." (citations omitted). Frank v. Frank, 335 Mass. 130, 135.

However, if over the last 18 years you paid for maintenance of the property, took care of the property treated as your own and contributed money for the payment of mortgages, taxes or maintenance you can over come the issue of his entitlement to the $80,000 preference. Rather he should get only half the equity.

Good Luck.