Dead Property Owner? Does brother Have Right to Sell the House?
Investor · Waco TX / Conroe, TX · Member since 2017 · 376 posts · 228 votes
So the Owner has been dead for 3 years and and did not have a will. The brother (who i spoke with) has been paying the property taxes for the last 3 years.
The deceased owner has a daughter who he didn't have a relation with and a son in Mexico
1)Would the brother be able to claim the property since he has been paying the taxes for the past 3 years? (The property is in Texas)
Any other suggestions would be appreciated.
lol, no. Assuming the property is in Texas and the owner (O) died in Texas, that is. Also assuming no spouse to deal with.
Equitable title vests upon death of owner; probate is about settling debts and passing legal title. Son and Daughter are the heirs to O's estate.
Brother (B) doesn't have claims to the estate, but may be entitled to reimbursement for taxes. Adverse possession is going to be hard to nail, and in any event not without a lawsuit to take title, probably in probate court. If you can't get the kids to sign over their interest, Brother has to come out of pocket to press claim. If kids will disclaim interest, affidavits of heirship and their disclaimer can probably work for title companies.
Last bit, you have to make sure there are no debts owed. If there are, you need probate to settle all claims, even if they are paid out of the sell of the house. Otherwise the creditors have claims against all of you for fraud.
Pull title and ask your escrow officer. They're the ones that need to verify what you'll need to get a deed if you buy it.
This is what probate is for. I don't know the correct answer, but generally ascendants/descendants would take priority over siblings. Best guess is that the son and daughter each are entitled to a 50/50 share in the estate, unless otherwise determined. If Uncle wants to claim the property he could request the son/daughter to grant the property over to him, but that will at minimum just demonstrate to them that there is something available to lay claim to.
lol, no. Assuming the property is in Texas and the owner (O) died in Texas, that is. Also assuming no spouse to deal with.
Equitable title vests upon death of owner; probate is about settling debts and passing legal title. Son and Daughter are the heirs to O's estate.
Brother (B) doesn't have claims to the estate, but may be entitled to reimbursement for taxes. Adverse possession is going to be hard to nail, and in any event not without a lawsuit to take title, probably in probate court. If you can't get the kids to sign over their interest, Brother has to come out of pocket to press claim. If kids will disclaim interest, affidavits of heirship and their disclaimer can probably work for title companies.
Last bit, you have to make sure there are no debts owed. If there are, you need probate to settle all claims, even if they are paid out of the sell of the house. Otherwise the creditors have claims against all of you for fraud.
Good to hear the input from the legal side.
So sounds like my best chance of pursuing this property is to have the brother claim ownership through a lawsuit unless I can somehow get in contact with the two kids to have them sign over their rights to the property.
Thanks for jumping in.
Good to hear the input from the legal side.
So sounds like my best chance of pursuing this property is to have the brother claim ownership through a lawsuit unless I can somehow get in contact with the two kids to have them sign over their rights to the property.
Thanks for jumping in.
No, no, no.....
I have no idea, from the responses above, why you think the best course is for the brother to “claim ownership through a lawsuit”. The brother has No rights whatsoever....so “claiming ownership” is just silly
Maybe my wording was a little off.
I realize that the owners heirs have the best claim to the property but given that they are out of the picture , I figure that the brother at least has the chance to obtain ownership one way or another. I would guess some type of legal action would be necessary to achieve this.
How would you suggest I go about this situation?
Good to hear the input from the legal side.
So sounds like my best chance of pursuing this property is to have the brother claim ownership through a lawsuit unless I can somehow get in contact with the two kids to have them sign over their rights to the property.
Thanks for jumping in.
A probate that includes tracking down heirs can take a long time to process.
Lots of things can go against you buying the property even then.
Although it is a learning experience, it can drain your coffer while you try to make it happen. It is not a wise use of your time or resources unless all heirs are involved, they all agree on all issues and there are no challenges to the will or probate. Then you are looking at only 6 to 8 months depending on the state requirements for posting and paper flow.
The only other approach I can think of is Quiet Title, but I'm not sure an attorney would agree to take the case since he would have to convince them he has standing to start the case.
Just because they are not currently doing anything or physically present in the US changes nothing. They are still the only legal heirs to the property
Acquiring through adverse possession would require notification to the heirs.
@Account Closed
Thank you for the options.
I am not that familiar with the probate process but I know that it is lengthy and most likely something I want to deal with for a year. Not sure if it changes things but the brother lives in the deceased owners primary residence too so maybe that would help the attorney prove he has standing.
Only reason that I am looking into this deal is because the brother has serious motivation to sell (property has been vacant for years and he can't afford the taxes) if only he is able to obtain title.
Would there be any way I could just tell the brother to stop paying the taxes and then i could pick it up for the before it went to the tax sale auction?
The brother did not even know the daughters last name and said that she and her father were not close.
I told him to try to talk to some relatives and get some more info for when I call him back.
Can you think of any other options when you are unable to get in contact with the heirs?
I'll second what Jerel Ehlert said. You're not dealing with the owner, period. I don't know what TX does, but it sounds like you're trying to deal with a squatter.
If brother hasn't gotten rid of everything from the deceased, there could be an address book or something identifying the children.
Not a lawyer, but I think you're - what's the saying? - beating a dead horse.
Find the children. (I'm guessing Mexico has private detectives who do such things and maybe Mexican consulate/embassy can advise.)
@Blaine Alger, There is always a way and there is always another way. You're mainly looking for a proposal that will satisfy the party currently paying the taxes and that will profit you -so make a proposal. The recommendation to get a title report is solid. It will tell you who own's what, what debt remains attached to the property, and what the title company will need in order to insure the title. I'd surely want to know those things. But do realize that no matter what the title company says you need, you can profit from this property with no title at all. See the link at the bottom of this post. What ever you decide, it is important to understand who has a legal interest in the property under the Texas Statute on Intestate Succession (Laws for disbursement of property when there is no will)
https://statutes.capitol.texas...
@Jerel Ehlert provided key information about equitable title being different from legal title. You should learn the ways the brother can make an equitable claim on the property (because he cared for it and paid the taxes) and ways that he (or you) could turn his equitable title into legal title. Also, realize, that debts secured by the property likely will never need to be paid. Texas has a three to six year statute of limitations on most debt (except mortgage debt). If no one has been collecting the debt for the past three years then debt on the property is not likely to be collected at the last minute -unless you seek a clear title. Past debt is also potentially dangerous because it can be bought by others and used to foreclose -until debt is beyond the statute of limitations.
All in all, my approach would be to offer the brother just enough to get a quit claim deed from him (for the equitable interest that can be established by his improvements and the property taxes he's paid). A quit claim deed will give you all his interest in the property (equitable & legal -if any). Then, I'd just rent it out for a couple more years until the period of Adverse Possession is completed. At that point file a quiet title action to clear the title in your name. Texas has a short period of adverse possession, 3 years if you had a colorable legal claim on the title, 5 years with an equitable claim that you can turn into a legal claim just thru your possession tacked on to the brother's and by paying the property taxes (the brothers 3 years of taxes are tacked on to your future two years) -if you get a quit claim deed from the brother.
Adverse possession is not common, but it is well known, and works just fine if you educate yourself. https://www.biggerpockets.com/...
@Greg H., While the second sentence here is true, the first is -at best, unhelpful. "Just because they are not currently doing anything or physically present in the US changes nothing. They are still the only legal heirs to the property"
When the legal owner's of a property are not using it, not maintaining it, and not paying the taxes on it, they are viewed in the law as having implicitly abandoned their property. Such "abandoned" properties are available to be taken. As a matter of law, there can be no trespass, nor theft, when a property has been expressly or implicitly abandoned by its owner. https://www.biggerpockets.com/...
So in this situation, Blaine could acquire the "equitable interest" the brother currently has, then use the property as his own, whether he has legal title or not. It is true that the heirs maintain their legal interest until a court rules otherwise, but the current implicit abandonment of the heirs does change who can use the property in their absence. Under the law, continuous possession and use of that property by the brother, or by the brother followed by Blaine and/or his tenants, will eventually create a valid legal claim on the title for the brother or for Blaine.
Lol. I love when people outside of Texas get involved. The Brother has zero interest currently in the property nor has the ability to convey under Texas law. The Brother at best has the ability possibly collect on his back taxes paid . Please site Texas law where I am incorrect?
@Greg H. An unqualified statement that, "The Brother has zero interest currently in the property" is not true in any state of the union. If you site the Texas law which makes such a statement true, I will either point out the fault in your application of the law, or admit my own. The commentary I give is based on near universal common law principles. IE: The brother has a valid and legally cognizable possessory interest (in every state of this union -including Texas) because he is in control of the property. If he was living there, neither a daughter nor son could summarily remove him. The brother also has a legally cognizable equitable interest in the property (in every state of the union -including Texas) by virtue of the fact that he has paid the property taxes for three years. The brother also could have a legally cognizable title interest because under the Texas Intestate Succession Statute the property belongs to siblings if both of the previous owner's parents are deceased and their are no surviving children. https://theenergylawgroup.com/...
So a correct statement would be that, If there is a surviving spouse or children of the previous owner, then the Brother currently has zero title interest in the property. Even so, there are methods that a knowledgeable investor can use to profit from the brother's current possessory interest in the property, and from his equitable interest.
Courts routinely enforce contracts based the cognizable right of mere possession. In common law, possession is itself a property right. Possession acquired without consent is still a property right which the law protects. There is a rebuttable presumption that the possessor of property also has the right of possession. Merely possessing real property gives rise to a right of possession which is enforceable against everyone -except those with a better right to possession. Evidence may be offered to establish who has the legal right of possession, which may include evidence of (Title) ownership, or evidence of a superior right of possession without ownership (Adverse Possession). The passage of time can also bring to an end the owner's right to recover exclusive possession of a property, even without losing the ownership of it, as when an adverse easement for use is granted by a court. All that is a long way from "zero interest".
Don't ever use a quit claim in Texas.
@Blaine Alger This might be easy, it might be complicated. If they want to sell the house, YOU go to YOUR title company and present them the scenario. They will tell you who has the right to sell the house or what steps need to be taken. They will tell you if a probate is needed or if there is an alternative. It's probably the kids who need to sign, not the brother, but in the end we don't know. If you want title insurance and want to be safe and want the easiest situation to resale, let the title company bless this....not the brother.
Possible probate is not needed...possible probate does not take a long time...4-6 months. Depends on lots and lots of things.
This may be a tough one from the situation you describe, but start with title, then go find the people they say need to sign. My guess is that it is the kids, not the brother.
Sounds like a conspiracy to defraud the son & daughter of their inheritance. Sorry the decedent hadn't been in touch with his children in awhile, but that doesn't change their status as beneficiaries of the estate.
As you look at options, try to find out if the brother was sick for a period of time before he died. If the government paid for his medical care, some programs have a legal claim on the house for reimbursement.
Good point. I have not thought about that, but i will be sure to check it out.
Sounds like a conspiracy to defraud the son & daughter of their inheritance. Sorry the decedent hadn't been in touch with his children in awhile, but that doesn't change their status as beneficiaries of the estate.
I don't know if I would go as far to call it a conspiracy.
I realize what the law states but their dad has been dead for 3 years and they have yet to claim any of the assets.
If the brother has been the one who has been taking care of the property since his brother passed, then in my eyes he deserves to control that asset. So if I can figure out a way to allow him to sell it, thats what i'll do.
Great advice.
Title will be a lot more knowledgable on the situation than I will be and will be able to tell me where I need to start.
No sense in speculating when I don't know where I am going.
Can you give an explanation as to why not to use quiet title in Texas?
I appreciate your time and effort in putting together a thoughtful post that outlines how I could pursue this deal opposed to "its not possible".
With that being said, I like your approach of going the quiet title route to obtain the brothers equitable interest and then waiting the 2 years to obtain legal title through adverse possession. However, I do have my concerns in regards to the use of quiet title in Texas and having to wait 2 years to obtain legal ownership.
I don't know why but quiet title does not seem to be that popular in Texas so i need to do some more research to see what the down falls of it are.
With adverse possession and having to wait 2 years to obtain legal title, what would happen if one of the heirs came in and tried to assert their claim on the property? I know the odds are small since they haven't tried to claim anything in the past 3 years but it still seems like I could be rolling the dice with my investment and there is the potential for someone to come in underneath me.
All in all, i like the way you are thinking but I think I definitely need to do some more research to address my concerns.
Quiet title is to settle title disputes. It is a common law cause of action, not really recognized in Texas because we have a statutory cause of action called Trespass To Try Title (TTTT, I don't know why it's that mouthful).
You can make this happen, if you are willing to pay $$. Get a contract with the brother, then...
Brother's claim to title is under adverse possession, but he hasn't fulfilled the minimum requirements under Texas' Civil Practices and Remedies Code (CPRC) (see, Sec. 16.024 et al.). Paying taxes and maintaining the property are elements of the 5-year SoL under Sec. 16.025. This is your weakest link in the case.
Next best claim is Brother appointed as administrator for deceased. He can then recover his taxes paid, improvements/maintenance, sell the property, and get paid 5% of all money received and paid. Money will likely go to the registry of the court if/when they make a claim.
Venue is still going to be under probate court to deal with the kids' heirship. You will drop $$ on ad litem - a lawyer appointed by the court to represent the kids. Then more $$ to post notice by publication.
In the end, either the Brother will get legal title or reimbursed what he shelled out + 10% of the estate.