Legal Question in Real Estate Law in New York

Re: Morgage to son and daughter-in-lawmy husband and i

Unless there is a lien filed with the County Clerk no one will know of your mortgage interest. If they will not agree to sign a note and mortgage you will need to bring an action to establish it by court oarder.

Re: Morgage to son and daughter-in-lawmy husband and i

It sounds like you did not record a mortgage, but merely sold the house to your son and daughter in law with nothing in writing beyond the deed. You will probably lose. There is no mortgage, and your daughter-in-law holds whatever interest you gave her, free and clear of any mortgage. The fact that your son has been paying and you've been documenting may preserve you against a claim for Gift Tax, but legally, you have a big problem. Statute of Frauds requires written, signed documentation to create a valid mortgage. You will need to engage a lawyer to get through this, and even then, it is unlikely to succeed; you can, however, complicate the divorce proceedings. Whether it makes sense to do so is a question that only you can answer.

This post is not legal advice and does not create an attorney-client relationship. It is a comment on the legal question posed by the poster and should not be relied upon unless and until an attorney-client relationship is entered into. Doing so would require signing an engagement letter and depositing a retainer to secure payment of legal fees.

Re: Morgage to son and daughter-in-lawmy husband and i

Generally, a mortgage on real property to be enforceable, {under real property law and the Statute of Frauds) must be recorded.

However, in this case, the Divorce Court may accept proofs of the outstanding Debt or Loan on the property, to you and your spouse, in order to allocate the "equities" as between the divorcing parties.

In addition to the recorded payments, tax returns, notes, letters, etc., reflecting the mortgage income,payments or terms of the agreement and understanding, may also be proofs and helpful.

GOOD LUCK,

PHROSKA L. McALISTER,ESQ

Re: Morgage to son and daughter-in-lawmy husband and i

If you have no written mortgage the best you can do is sue to impose a constructive trust against the property for the amount of the mortgage and accumulated interest and file a lis pendens.

The lis pendens will serve to inform any prospective buyers that there is an action pending which may affect the title to the property.

Hopefully, you might be able to then settle.