How much share should I get in our property

Question

In 2012, my brother, my mom, my dad, and I bought $349,000 property with 10% down to it. I paid the most towards the down payment, $10,000.

Our mortgage is around $1,600/month and property tax of $2,500 yearly. I moved out in 2015. So my brother and my parents continue to pay the mortgage but my name is still on that property.

Unfortunately, my dad passed away in 2018 and we decided to talk about our shares. As of now the value of that property is around $750,000 based on the recent property sold in that area. The remaining mortgage balance as of April 2018 was $337,000. My brother loaned $60,000 so it went up to $400,000 before my dad passed away. This year, 2020, the remaining mortgage balance is $370,000. So my question is, how much share should I get if we split the share in four?

Am I still entitled to have the same percentage as my brother since I haven't lived there since 2015? Do you calculate the same percentage as the others since in the beginning I have highest amount of down payment?

Answer 1

There are many different cash flows involved here— both positive (ie. capital gains) and negative (ie. rent due from each person that lived in the house, and paid to all those with an ownership interest)— with different people having different proportional shares of each. There are multiple start dates on which those various cash flows became relevant to the issue at hand. The good news is that it sounds like you are pretty certain about those dates, and the actual dollar amounts are well established. That turns a lot of this into straightforward cash flow analysis that any CPA should be able to do in their sleep.

The part where it will probably get sticky is the fact that they (your family) were living in the house for part of that time and you lived elsewhere. In that situation, they would owe you rent paid at a fair market rate for that property and in the same proportion as your ownership stake in the property. This is because they received the benefit of your investment (the down payment), while you gave up the potential income you could have had by investing that money elsewhere. Calling it "rent" is troublesome and tends to provoke negative emotions, so you will make this conversation easier if you talk about it as if it was a cash loan.

Note that they do not get to use the capital gains you have made on the property to offset the amount they owe you. There are several ways to explain this:

• First, and most directly: capital gains is not the same as investment income (ie.interest). The windfall from selling the house does not offset the opportunity cost of the lost investment income you could have made had you used that money for some other purpose.
• They have also received capital gains on their own investments. They have no more right to devalue your gains for their own benefit than you do to simply take a portion of their gains just because you feel like it.
• The fact that you lived elsewhere is irrelevant: they are not retroactively paying your rent. Rather, you paid your own rent out of pocket in addition to the opportunity cost borne by holding a non-liquid asset that pays no interest.
• The time they spent living in the house was made possible by your investment, but they must mentally disconnect you from that money. It is no different than a bank loan.

You need to separate the $60,000 loan from your brother, versus the value of the house and the improvements your father made. The amount owed on the house is still $349,000, not $400,000. Even if your dad directly used that money to increase the value of the property to $750,000, your brother is not entitled to a greater portion of that gain because of the loan. What he is entitled to is the outstanding balance plus any interest owed, period. That is how loans work.

Further, your brother is now owed that money from your mom, as she most likely inherited your dads share of the property as well as the debt. How she pays it has no impact on the proportional ownership interest that each of you now has in the house. When she dies, and if a portion of the loan is still outstanding, your brother would be able to collect the remaining balance from the estate before you divide up the remaining assets, and in that case it would reduce the total value that you would stand to receive from your moms estate. In no case does it alter the proportional interest each of you has in the property, because. it. is. separate.

These situations are always difficult, and it's good to remember that you're dealing with family. Try to empathize, but also set the expectation that everyone must do the same. You all deserve to be treated fairly and you all deserve your fair share. If you truly believe that the others are not mature enough to approach this objectively, and if you are unsure about the financial math involved, you can hire a CPA. A good one will be able to give you an exact breakdown of the entire situation using well established methods and explain all the details in a way that should leave everyone with the sense that they were treated fairly (not necessarily happy). I'd skip the lawyer unless things get really contentious; you (or your accountant) will probably know if things have reached a point where lawyers are necessary.

Answer 2

You need a neutral outside expert who will look at all the numbers, and then render a decision with all the numbers explained. The three current owners will have to agree that the split the expert calculates will be accepted by all three parties.

They will have to start with any written documents that would have detailed the arrangement. The three parties have to provide an accounting of not only the down payment and the monthly payments, but any additional loans that were obtained and what the money was use for. For example that $60,000 loan if used to replace the roof could be viewed as a shared responsibility, but if it was used to buy a car or to pay for college it isn't a shared responsibility. They will also have to value the implied rent if anybody was living in the house for a particular month.

The additional twist is that when your father died, depending on the local inheritance laws and his Will it is possible that your mother inherited your fathers share, or it was split some other way. The executor of the will should have made that determination.

Sometimes this question is asked when somebody wants to sell their share to the others. In that case how much one is willing to settle for is the most important part of the answer. Sometimes this is asked after the home is sold.

You are asking while the three owners are still invested and will continue to be invested. That means the expert will also have to provide a method of recalculating the split going forward.

Besides determining the split for each person, this could be important when figuring if there is any tax issues when either a person sells their share to the others or if the house is finally sold.

Just a note: Even if everybody agrees to arbitration there is no guarantee that they will be happy with the answer. Families have disagreed over much smaller amounts.

Answer 3

First, congratulations on the nice capital gain. (From now on, every time someone asks on here "What to invest in?!" I will send them to this question!)

• The three of you need to - literally today - hire an attorney. Choose one who focusses on property

• It will only cost maybe one or two hundred bucks per person

• The attorney will do everything, including hiring an accountant to sort it out if necessary

There is simply literally no other process here, that is what you have to do. (Indeed, "today").

---

Footnote: in fact, realistically each person would need their own attorney. Unless you are all unbelievably happy, trusting, and don't care about money :O