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Why You Should Not Transfer Your Home to Your Children Without Legal Advice

by | Real Estate

Many seniors consider transferring their home to their children while they are still alive. They may fear losing the home if they need Medicaid or for other reasons so they give it to a family member with the view that they will remain in the house for the remainder of their life. However, transferring your home to your children without good legal advice can result in significant problems. Sadly, we often see the fallout of poor family planning and the havoc that it can cause when the senior is kicked out of their own home.

As an example, this situation is all too common: An elderly parent (“C”) transfers ownership of her primary residence to her son and daughter-in-law, on faith that the parent will be cared for and able to remain at home for the balance of her life. Tragically, the son pre-deceases C, and daughter-in-law acquires full title to the home as a surviving spouse of C’s son. Thereafter, when C and daughter-in-law have a household conflict, daughter-in-law tells C that it is time for C to leave. Shortly thereafter, C is served with eviction proceedings in which she is described as a “squatter.” C also learns that her daughter-in-law has listed the home for sale with a realtor. 

What should C do to avoid getting kicked out of her home? C must take immediate action as follows:

  • Get a lawyer. C should engage an attorney quickly to navigate through the immediate challenges. The attorney must try to stop the eviction as well as address ownership of the home.
  • Bring an action in New York State Supreme Court. The daughter-in-law’s eviction action will likely be commenced in a Housing Court or District Court, which has very limited jurisdiction and will not be able to decide C’s ownership rights to the property. Instead, C needs to commence an action in the New York State Supreme Court, which has higher and more comprehensive jurisdiction. C will initiate a “constructive trust” lawsuit asking the Supreme Court to declare that C, not the daughter-in-law, is the equitable owner of the home.  
  • Stop the eviction proceeding. District Court eviction proceedings are expedited in favor of the moving landlord, which means that C must act quickly. After filing the constructive trust lawsuit, C must immediately proceed to the Supreme Court to request a temporary restraining order (TRO) and injunction to prevent the daughter-in-law (and the lower District Court judge) from acting on the expedited eviction proceeding. 
  • Request consolidation. C should also request that the Supreme Court judge consolidate the two court actions into one action before the Supreme Court judge.
  • File a notice of pendency. C should file a “notice of pendency” with the county clerk, which notifies the public about C’s claim against the daughter-in-law. In effect, the notice of pendency (also called a “lis pendens”) prevents the daughter-in-law from selling the home while the lawsuit is pending.    

While these actions may allow C to stay in her home, best practice is to consult an attorney before transferring your home to your children or other family member. If you need assistance before or after a transfer of your home, contact us for a consultation.





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