Dispute Between Mother and Son Over A House

First off, let me say that I reside in NJ.

My mother and father were legally separated in 1987. My mother wanted out of the house and my father paid her 70K for her half of the marital assets. My father then died in 1990, and ownership of the house reverted to my mother, who was still on the deed (story goes that the separation papers were never filed)

Since my mother already had a place of her own, she had no desire to live in the house, and I moved in at the age of 24. We had an arrangement whereby I would pay the mortgage and the house would become mine when the mortgage was paid off. Around 1991, my mother, at my urging, refinanced the house from a 30 year to a 15 year loan at a lower interest rate than my father originally secured back in 1988. I had paid the previous mortgage since my father passed, and then every payment on the new 1991 loan, without fail, until the scheduled last payment a few months ago. I have lived in the house as if it were my own since 1990, first by myself, and then along with my wife, who I married in 1999. At the time, my wife was leary about the situation, and my mother assured her that she had no "designs" on the house, and that she would deed it over to us when I had completed paying the mortage. My wife and I have lived in the house, as I did when I was single, as though it was ours, paying for basic maintenance and home improvements, as well as the property taxes.

Back when I was 24, I was happy with this arragement, as I did not expect to qualify for a mortage on my own. Then later, when I got married, I foolishly left things as they were basically so as not to rock the boat. Well, my relationship with my mother has deteriorated over the past couple of years. This stems mostly (though not all; I will spare the forum the gory details) from the fact that two years ago, without telling me, my mother paid off the 1991 loan (with about 20K remaining) and took out a 180K home equity line of credit out on the house, basically to use as a bridge-ing loan when she bought a new house before she was able to sell her old one. After she did succesfully sell her old residence, she paid the loan down to 40K. I discovered this about 1.5 years ago, and only after requesting that she transfer the deed, my wife and being in a position to pay the remaining debt that I THOUGHT existed on the house.

Even though the 1991 loan was no longer in effect, I paid her as though it was, making my last payment last August, and thus satisfying what I felt was my "moral obligation". My relationship with my mother deteriorated greatly during that time, mostly as a result of my chastising her for her actions, which I felt were reprehensible. Her position, stated to me early on, was that she would have paid everything off and deeded the house to me in the same time frame as my paying the 1991 loan off anyway, so it shouldn't matter to me. Despite my anger, I trusted her and continued to pay her monthly.

Since August, my wife and I have left a few unanswered messages with my mother asking her when she was going to deed the house over to us, which was always the plan (and her promise). However, last month, my mother changed her phone number to an unlisted number, and I cannot even contact her that way. My wife and I have enlisted the services of a real estate attorney, who was able to do a title search and discovered that approximatley 20K is still owed on the loan she took out in 2005. However it is a variable rate home equity line of credit (with a hideously high interest rate) , and she can borrow more at any time. Our attorney has advised us to file a "lis pendens" against the property to prevent my mother from removing any further equity from it and sue her for ownership. This all after us having only the intitial consultation, and in fact we have an appt. to meet with him again this week (thus I do not yet know the point of law our case will hinge on).

Can anyone advise me as to whether I have any expectation under the law to prevail in a legal fight with my mother? I am frankly skeptical, as the arrangement going back to 1990 (namely that my mother would deed the house to me (and then after I was married, to me and my wife) for 1 dollar) was never in writing, and to my knowledge, no one other than my mother, my wife, and I were aware of it. I am past being optimistic that despite our soured relationship that she will do the right thing. However I fear that once she is served papers she will fight tooth and nail against me, and a legal fight will cost me dearly.

You have a lawyer who is advising you, has told you to file lis pendens, but doesn't know if you have a valid claim against your mother?

There is no written instrument or contract to document an agreement between you and your mother? All mortgages were in your mother's name? You are not, and never have been, on the title? It sounds like a tough row to hoe.

How about apologizing to your mother for your past conduct and trying to mend fences, as that seems much more likely to get you the result you want than going to court.

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Quoting Mr. Knowitall

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You have a lawyer who is advising you, has told you to file lis pendens, but doesn't know if you have a valid claim against your mother?

There is no written instrument or contract to document an agreement between you and your mother? All mortgages were in your mother's name? You are not, and never have been, on the title? It sounds like a tough row to hoe.

How about apologizing to your mother for your past conduct and trying to mend fences, as that seems much more likely to get you the result you want than going to court.

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Yes, my lawyer may feel I have a valid claim; I was simply asking for other opinions here, to compare with the advice he gives me. I assumed this was a typical use for these forums.

No, my name has never been on the title or any mortgage, and there is no written record of the agreement I said was in place. I agree it is not a good spot for me to be in, and I sure don't care to waste thousands of dollars in legal costs for nothing. And even if I did think I had a good case, I would be (and actually am) very hesitant to go the legal route. However since my mother has made it clear she doesn't want to hear from me, I fear that that may be the only way to get her to respond. However, I am perfectly happy to hear that I have little chance of getting satisfaction via legal means, if that saves me from waging a pointless fight.

Your advice that I apologize for my actions might be reasonable if you did in fact "know it all". I despise the idea of suing my mother, and only saw a lawyer on the advice of my wife, her family, and friends. When I expressed my hope that my mother would eventually do as she has promised for all these years out of a sense of "decency", my lawyer informed me that based on what I'd told him, my optimism was without merit.

Well, its over, and I prevailed, or I should say, my Mother withrew her opposition to our complaint. Since my last post, there were two court hearings, the first so the judge could decide whether to put temporary restraints in place so my Mother could not sell the house or borrow against it or otherwise encumber it (the judge did order such restraints), and the second in order for the judge to consider a motion by my Mother's legal counsel to dismiss our complaint based on a lack of available legal remedy (the judge ruled that the case could move forward). After interrogatories were exchanged and through the discovery process, my Mother apparently realized that she was caught making a number of false statements in her previously filed affidavit/verified answer.

Apparently in NJ, an oral contract CAN be used to compel transfer of real estate under certain circumstances, though I'll never know whether I would have been able to prove such a contract existed. Thankfully now I don't need to.

Anyway, thought I would post the follow-up to my original post. And I'd also like to take this opportunity to say that I am glad my lawyer could offer better legal advice than the average "know-it-all".

Ooh, feisty. I like how it is somehow my fault that you didn't share the facts which would allow you to prove an oral contract... which apparently wasn't ever proved, didn't have a lawyer sufficiently competent to even tell you if you had a viable case, but that I somehow should have been able to guess your mother was lying on court documents you didn't tell us about and would therefore settle. Thanks for sharing the outcome, but please....

I think you got just plain lucky. The statues of frauds requires all real estate contracts to be in writing lest they be voidable or unenforcable.

I think a decent attorney on your moms side would have turned this into what it looks like, a child tenant that got upset when mom said no, there is no deal and never was when the child thought there should be.



I believe you got lucky she didn't really fight this.

I couldn't get in to New jersey's legislature site but I believe the germane statute is 12A:2-201 or about there.

The NJ statute requiring real estate contracts to be in writing was in fact amended in 1995 to allow for oral agreements. My lawyer argued (and the presiding judge agreed) that since my Mother made a new and distinct agreement with me AND my wife in 1998 (i.e. AFTER the amendment), we did in fact have a legal remedy available to us.

Here is the relevant statute (bold mine):

N.J.S.A. 25:1-5d. (Repealed by amendment PL 1995, c.360 eff. Jan. 5 1996). Effective January 5, 1996, the Statute of Frauds was amended to read: [a]n agreement to transfer an interest in real estate or to hold an interest in real estate for the benefit of another shall not be enforceable unless:

a. a description of the real estate sufficient to identify it, the nature of the interest to be transferred, the existence of the agreement, and the identity of the transferor and transferee are established in a writing signed by or on behalf of the party against whom enforcement is sought;

or:

b. a description of the real estate sufficient to identify it, the nature of the interest to be transferred, the existence of the agreement and the identity of the transferor and the transferee are proved by clear and convincing evidence

Interestingly, there is also considerable legal precident in NJ such that oral contracts for real estate which have been performed by one party are frequently enforced where to do otherwise would work an inequity on the party who has performed (such performance actually takes the contract out of the statute of frauds).

My lawyer believed (and apparently my Mother feared) he would have been able to prove that the agreement existed by the necessary burden of proof, AND that I performed significantly according to the agreement I claim existed. Of course, I learned all this AFTER I made my initial inquiry in this forum last year.

So...whiny forum-lording "knowitalls" who can't spare time away from doing whatever it is they do here (?) to actually offer any useful advice would chalk up it all up to luck. I say I benefitted from competent legal advice. If either of you knew what you were talking about, you wouldn't be wasting your time (and mine and everyone else's) spinning your wheels / running up your post counts here. You'll waste no more of my time anyway.

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b. a description of the real estate sufficient to identify it, the nature of the interest to be transferred, the existence of the agreement and the identity of the transferor and the transferee are proved by clear and convincing evidence

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and your clear and convincing evidence would be what?

from your own post:

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Apparently in NJ, an oral contract CAN be used to compel transfer of real estate under certain circumstances, though I'll never know whether I would have been able to prove such a contract existed. Thankfully now I don't need to.

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You got lucky!

The fact you calim a new contract was made post 98 proves you did not have a previous contract. How or why would you enter into a contract for a proterty which you supposedly already had a contract to purchase.

Additionally,, even if you did enter into a new contract, the purchase price was negotiated at that time and all previous payments then became rent.

You then cite various changes to the supposed contract yet you simply accept them.

Doesn;t sound like a contract for sale was in place to me.

It still sounds as simple as you scamming mom.

Neither of the court's rulings were "you win". The rulings only allowed the suit to continue on the merits. Mom got squirmy and her conscience got the better of her.....so you "won" because Mom gave up....not because the court ruled on the evidence.

So, I agree that you got "lucky" in court. I'm not saying that you should not get the house, but legally speaking....you got lucky.

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Quoting Just Breath

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Neither of the court's rulings were "you win". The rulings only allowed the suit to continue on the merits. Mom got squirmy and her conscience got the better of her.....so you "won" because Mom gave up....not because the court ruled on the evidence.

So, I agree that you got "lucky" in court. I'm not saying that you should not get the house, but legally speaking....you got lucky.

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"Just Breath", I acknowledge that I did not win on the evidence; indeed two posts back when I gave my update, I stated

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I'll never know whether I would have been able to prove such a contract existed. Thankfully now I don't need to.

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My lawyer felt that between the several provably untrue statements my Mother made (damaging her credibility) and a few witnesses I was able to dig up who were willing to testify about statements my Mother had made regarding her intentions with regard to the house, including a realtor (at one time we considered selling the house) and a mortgage broker (another time, we refinanced), we would have met our burden of proof. Of course, there is never a sure thing going trial, and I am both glad I did not have to roll those dice OR pay the additional legal fees needed to get to that point. My guess is my Mother wasn't willing to spend the money she would have needed to in order to deliver the "comeuppance" she felt I deserved, especially with likely odds of losing.

Without a good lawyer who could have shown that I even had a legal remedy available to me, I would have walked away with nothing.