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Real Estate - Worried About Deed Transfer on Death

Feb 11, 2017
Real Estate Q&A

Dear Edith: When my parents died, my brother and I inherited their house. I live in it now. I'm 70 years old, and I have reasons for needing the house to only be in my name.

My brother says I can just take his name off the deed and write him in a will. But I read that transfer on death is not allowed in my state. Do you have any ideas for how I can solve the problem? -- D.

Answer: You and your brother can go together to a lawyer, who will have the two of you sign a new deed naming you as the sole owner. Then you can sign a will saying that when you die, the house will go to your brother.

Don't worry about transfer on death. In some states it's a way of automatically changing ownership when someone dies. As it isn't available where you live, you can simply set the transfer up in a will.

Deed From 1912

Dear Mrs. Lank: In taking care of my late father's boxes of memorabilia, I came across a deed to a lot of approximately 2,000 square feet in Stafford County, New Jersey. The deed is dated Feb. 26, 1912. It is issued to Daniel McKernig (who I believe was related to my father) and signed with a red seal by "the party of the first part," Bertha Marquart. The deed is notarized, and there is an embossed seal of the notary public and Bertha's signature. However, the section of the deed where it states "recorded" is not complete.

Do you think this is worth my time to investigate? I have no proof of my father's relationship to Mr. McKernig other than family photos and correspondence from his son to my father. I do remember we called his wife Aunt Jenny, but she was not the sister of either of my grandparents. -- R. T.

Answer: If you enjoy fooling around on the internet, you could go to the website of the public records office of that county, search for the names, trace the chain of title and see what's become of that little parcel. The lawyer I double-checked with, D. L. H., points out that the plot is only about 45 square feet. He agrees with me that after more than a hundred years, your family won't have any legitimate claim on it.

Secondhand Smoke

Dear Edith: We bought a condo in another state to use as a summer home. Our downstairs neighbors are heavy smokers -- two packs a day each. Their secondhand smoke drifts up to our patio (they only smoke on their deck to keep the odor out of their condo). The smoke comes through our patio door and windows. We've tried speaking with them, and working with the homeowners association board and others, including a lung association tobacco program representative, an attorney at the Public Health Law Center and an attorney at a free legal clinic. Did I mention that the neighbor is also the HOA president?

We can't open the patio door or windows to let fresh air in because the patio is always smoke-filled. I'm on a daily medication to prevent migraine headaches. The smoke smell exasperates my symptoms.

We're so hesitant to file a lawsuit (charging nuisance, trespassing and disruption of quiet enjoyment) because we're unsure whether the suit would be successful. There don't seem to be any current precedents. Besides, we might end up with a hefty legal bill.

Do you think a lawsuit against secondhand smoke would be a success? Our goal isn't to make anyone quit smoking, just to be able to enjoy our porch and condo. Why can't these neighbors be considerate? -- B. O.

Answer: They probably can't be considerate because it's tough to fight addiction.

It looks as if you've already had plenty of opinions. I'm not a lawyer, so I'll just send you my sympathy. Perhaps some readers will have advice.

Beyond that, my only suggestion would be to sell. Selling brings up the question of whether you'd be obligated to disclose what is legally known as a nuisance to potential buyers. And if the situation existed before you bought the condo, should your sellers have disclosed it to you?

You're right: The lawyers could have a grand time with this.

Contact Edith Lank at www.askedith.com, at edithlank@aol.com or at 240 Hemingway Drive, Rochester NY 14620.

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