My question is: Canadian-specific
QUESTION: my husband and i bought a house together.At the time he thought it
would be a good idea to put it in his sisters name the house,morgage,land
ect now we are talking about devorice. I would like to know if i am entidled
to anything concerning the house
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david ingram replies:
I am not a lawyer but am going to tackle this anyway.
I do not know if this was a rental house or the house you lived in but will
answer both.
1. You lived in the house
The question is whether your sister-in-law treated the house as her own.
If she charged you rent and filed a tax return as the owner of the house,
then it is her house and you likely do not have a claim. This would be
further enhanced by the fact that you called your sister in law whenever
something was wrong with the house and she arranged for it to be fixed.
If, on the other hand, you and your husband or just your husband made all
the payments, paid the taxes, mowed the lawn, fixed the plumbing or arranged
for the plumbing to be repaired and your sister in law did nothing, the
house is you and your husband's house and your sister is holding it in what
is known as a constructive trust.
---------------------
2. The house was rented out.
Who collected the rent? If you and your husband collected the rent and paid
the expenses and fixed everything up, the house is yours in a constructive
trust. If your sister in law looked after everything, it is her house.
------------------------------------------------
I have not dealt with the down payment. If the down payment came from
family funds (which includes your husband's salary) or other communal funds,
it is good evidence that it is your house. If, on the other hand, your
husband's parents left money to your husband and his sister, and they used
the inheritance to buy the house and no money ever came out of the house
(assuming it was rented) that your husband used for family purposes, then it
would not be a family asset and you would have no claim.
If, on the other hand, the down payment came from their estate but you and
your husband lived in it as your own and you cleaned it and painted here and
there and treated it as your own, at least half of the house belongs to you
and your husband and you would be entitled to 1/4.
If all the money always came form you and your husband and you treated the
house as your own, you should be entitled to half.
However, i reiterate, I am not a lawyer. You need to deal with a lawyer who
understands the concept of a constructive trust. I have found that few
lawyers understand them. And, I had every reason to deal with them because
I had given my family house to my wife but never physically filled out
paperwork. It was important to prove that the house was my wife's.
Later when my wife left and we were divorced, it became important to me to
prove that I was now (as a discharged bankrupt) entitled to half of my
family house.
It was not easy. It was Bill Spohn, (604) 925-8681 a lawyer at 1101-100
Park Royal South in West Vancouver who first told me what a constructive
trust was.
The lawyer that steered my divorce was David Bellamy at (604) 682-8900. He
did a marvellous job of stick handling a rare set of circumstances.
When you are picking a divorce lawyer, your first test will be to ask him or
her what a constructive trust is. If they give an immediate correct answer,
you can consider them. If they do not immediately seem familiar with the
terms of a constructive trust, find someone else. Bill Spohn is not a
Divorce lawyer but has a Ms Johnson in his office who is a good family
lawyer.
David Ingram's US/Canada Services
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