Can a remainderman be affected if a life tenant mortgages the life estate and then defaults on it?

UPDATED: Sep 4, 2014

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Can a remainderman be affected if a life tenant mortgages the life estate and then defaults on it?

When my grandmother died 14 years ago, I was 8 years old. She left me a house where my mother and I lived. My mother was to have a “life estate” in the house as long as she paid the taxes, kept the property up and didn’t move from the house. Somehow 8 years ago, when I was only 12, she was able to get a mortgage. She defaulted and they foreclosed on the house about a year ago. I was confused as to how she could have gotten a mortgage on it anyway let alone how I could loose my house when I didn’t agree to the mortgage. Last week I received a summons for civil court when the mortgage company realized that the title was not clear and they want myself and the executor to sign off on it. Is there anything I can do to get my house back?

Asked on September 4, 2014 under Real Estate Law, Virginia


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

The mortgage may not be valid: a property in which there is a life estate cannot generally be mortgaged unless both the life tenant(s) and the remainderman(men) agree to and sign off on the mortgage. If the  mortgage is not valid, there will be no security interest in it--it cannot be foreclosed upon--though the life tenant would be personally liable for the debt. The fact that a mortgage was granted in error should not make the mortgage valid and enforceable. That said, these arguments can be rather "technical" to make properly; you should retain a real estate attorney to represent you to protect your interests.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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