{"id":382,"date":"2010-07-12T13:18:54","date_gmt":"2010-07-12T13:18:54","guid":{"rendered":"http:\/\/blog.topbev.com\/?p=382"},"modified":"2010-07-12T13:18:54","modified_gmt":"2010-07-12T13:18:54","slug":"couples-uncoupling-the-sequel","status":"publish","type":"post","link":"https:\/\/blog.topbev.com\/?p=382","title":{"rendered":"Couples “Uncoupling”–The Sequel"},"content":{"rendered":"

Many of you showed interest in this post, and I thought it might make some sense to “flesh out”\u00a0terms and conditions \u00a0a well-drafted Tenancy in Common Agreement<\/strong> or Joint Tenancy Agreement (the “Uncoupling Documents”)<\/strong>\u00a0might contain. There is nothing magic here: common sense and simplicity should always be the ruling impulses.<\/p>\n

Here are some ground rules.<\/p>\n

\u00a0\u00a0\u00a0\u00a0 1. Both parties should have counsel<\/strong>. If people are willing to enter into an agreement like this, they want it to be enforceable somewhere down the road. It is perfectly acceptable for one attorney to take the laboring oar in drafting, with the other attorney serving in a “review” status. That will obviate the ability of a party to say, “I did not understand<\/strong>” or “I signed\u00a0but I didn’t know what I was getting into<\/strong>.” The cost of a reviewing attorney should be minimal.<\/p>\n

\u00a0\u00a0\u00a0\u00a0 2. There is no need to record<\/strong> this<\/strong> document. <\/strong>At least in Massachusetts, where I practice, recording serves the function of giving notice to the world of a certain set of circumstances affecting a property. It is title driven. The Uncoupling Documents do not affect title. They are simply some understanding the parties have with regard to their ownership. As a point of fact, recording the Uncoupling Documents may complicate title review.<\/p>\n

\u00a0\u00a0\u00a0\u00a0 3.\u00a0 Basic “Exit Approaches” I have used.<\/strong><\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 <\/strong>a. Notice to the other person with an Offer to purchase at a price. The other person has thirty (30) days to accept or say that he or she will buy the offering person’s interest at the price in the first offer. This keeps the offers from the first person honest and fair.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 b. The same Notice as Paragraph 3a, but no price. Each party then selects an appraiser, and the price is the average of the two appraisals. There is a variation of\u00a0this approach which has the appraisers selected by the parties selecting a third appraiser, and the third appraiser\u00a0doing the appraisal, and it is binding. This approach has the merit of having the price be accurate. I still like to give the “non-offering” party a chance to buy at whatever price\u00a0has been\u00a0determined.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 c. Whoever ends up withdrawing, at whatever price, there is a provision for delayed payment. I usually suggest a down payment of at least 20%, with the balance to be paid over three (3) years at prime plus 2%. There is obviously no magic in this, but some formula should be included to give the other person time to buy out the withdrawing person.\u00a0A sale of the dwelling would trigger payment in full at that time.<\/p>\n

\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 d. Sell the property and split the proceed. This may be the easiest, and cleanest, solution. Each party should be able to require this. It clears the air, and gives each party the ability to “move on” and not have to deal with the other on any continuing basis. I have found it helpful to make some provision for selecting a firm or person to market the property is another good provision for the Uncoupling Document.<\/p>\n

Most people will honor a written agreement that they understand and have signed. The problem in the Uncoupling Scenario is that people have a real problem agreeing on what is “fair”. There is hurt or deception mixed in to their relationship. The ability to have a well-drafted and easily to understand exit strategy can ease the pain for both sides. That is what I have found in my more than forty (40) years of trying to help people protect themselves.<\/p>\n","protected":false},"excerpt":{"rendered":"

Many of you showed interest in this post, and I thought it might make some sense to “flesh out”\u00a0terms and conditions \u00a0a well-drafted Tenancy in Common Agreement or Joint Tenancy Agreement (the “Uncoupling Documents”)\u00a0might contain. There is nothing magic here: common sense and simplicity should always be the ruling impulses. Here are some ground rules. … Continue reading Couples “Uncoupling”–The Sequel<\/span> →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"spay_email":"","footnotes":""},"categories":[1],"tags":[251,249,252,250],"class_list":["post-382","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-fairness-in-dividing-real-property","tag-joint-tenancy-agreement","tag-representation-by-counsel","tag-tenancy-in-common-agreement"],"jetpack_featured_media_url":"","jetpack-related-posts":[{"id":378,"url":"https:\/\/blog.topbev.com\/?p=378","url_meta":{"origin":382,"position":0},"title":"Couples “Uncoupling” and Owning Real Estate–“Breaking Up is Hard to Do”","date":"July 9, 2010","format":false,"excerpt":"In Massachusetts, where I have been practicing real estate law for more than 40 years, many unmarried couples purchase real estate together. Some engaged people are trying to take advantage of the current low interest rates, and market indecision, to get something \"we own before we marry\". Other couples, who\u2026","rel":"","context":"In \"joint tenancy\"","img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":410,"url":"https:\/\/blog.topbev.com\/?p=410","url_meta":{"origin":382,"position":1},"title":"Protection of Your Investment, Easy Allocation of Contributions of Partners–It is extremely hard to beat the “Limited Liability Company”","date":"July 12, 2010","format":false,"excerpt":"Anyone who owns a business venture should be concerned with certain basic truths.\u00a0 It is a sad but true fact that our society is becoming more and more litigious every day, and more and more small business owners are finding themselves on the wrong side of law suits.\u00a0 Right or\u2026","rel":"","context":"In \"limited liability companies\"","img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":347,"url":"https:\/\/blog.topbev.com\/?p=347","url_meta":{"origin":382,"position":2},"title":"Representing Same Sex Clients–Documentation at Purchase Is Generally a Worthwhile Enterprise","date":"July 9, 2010","format":false,"excerpt":"In Massachusetts, where I practice real estate law, same sex marriage has been legally acknowledged. In a\u00a0situation where a same sex, married couple, purchases real estate, I suggest that the Grantee clause read \"a married couple, as tenants by the entirety\". Massachusetts law provides excellent protection from creditors to husbands\u2026","rel":"","context":"In \"representing same sex couple in real estate situations\"","img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":173,"url":"https:\/\/blog.topbev.com\/?p=173","url_meta":{"origin":382,"position":3},"title":"Massachusetts Tenancy by the Entirety and Declaration of Homestead–A Basic Primer","date":"June 24, 2010","format":false,"excerpt":"In Massachusetts, and possibly in other states as well, significant protection is given to the non-debtor spouse if the married\u00a0couple elects to take title as \"husband and wife, tenants by the entirety\". There are other advantages to tenancy by the entirety, such as avoiding probate, but the principal advantage is\u2026","rel":"","context":"In \"declaration of homestead\"","img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":117,"url":"https:\/\/blog.topbev.com\/?p=117","url_meta":{"origin":382,"position":4},"title":"Evictions – If a tenant installs a fixture does it become the property of the landlord?","date":"April 2, 2010","format":false,"excerpt":"When a tenant installs an item in an apartment, such as track lighting, a chandelier, cabinetry, etc., which item is removable, but is attached to the wall, ceiling or floor of the premises, the installed item is known as a \u201cfixture.\u201d The standard rule in real estate law is that\u2026","rel":"","context":"In \"14 day notice to quit\"","img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":114,"url":"https:\/\/blog.topbev.com\/?p=114","url_meta":{"origin":382,"position":5},"title":"Evictions – An error in filing the complaint can result in dismissal of the case.","date":"March 23, 2010","format":false,"excerpt":"In handling evictions for landlords and tenants I often see some confusion regarding the process for filing the eviciton complaint. If the landlord properly follows the procedure then the the complaint is not subject to dismissal. But if there is an error in the process then the tenant will naturally\u2026","rel":"","context":"In \"14 day notice to quit\"","img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]}],"_links":{"self":[{"href":"https:\/\/blog.topbev.com\/index.php?rest_route=\/wp\/v2\/posts\/382","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blog.topbev.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blog.topbev.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blog.topbev.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/blog.topbev.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=382"}],"version-history":[{"count":3,"href":"https:\/\/blog.topbev.com\/index.php?rest_route=\/wp\/v2\/posts\/382\/revisions"}],"predecessor-version":[{"id":829,"href":"https:\/\/blog.topbev.com\/index.php?rest_route=\/wp\/v2\/posts\/382\/revisions\/829"}],"wp:attachment":[{"href":"https:\/\/blog.topbev.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=382"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blog.topbev.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=382"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blog.topbev.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=382"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}