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Cirillo v. Scherillo

A-5328-02T1 (N.J. Super. App. Div. 2005) (Unpublished)

DEEDS—A grantee on a deed may not necessarily have an interest in the property.

A husband and wife were under contract to buy a property. At the last minute, the husband decided not to purchase the property. His wife, however, proceeded with the purchase in order to avoid losing the deposit. For credit purposes, the wife’s son was a signatory to the note and mortgage and was added to the deed. The wife contributed her funds to the deposit and made the monthly payments from her own funds. The husband contributed labor and materials to improve and upgrade the property. The wife’s son, however, made no financial or other contributions toward the property. When the husband and wife divorced, the property was to be sold as part of equitable distribution. The house was under contract, but the wife refused to sell. The husband petitioned to compel his wife to sell, and the husband was granted power of attorney to sell the property. At that time, the wife’s son filed a complaint for partition and filed several lis pendens against the property claiming that since his name was on the deed he was a tenant-in-common and had an interest in the property. The Chancery Court transferred the case to the family part and it was consolidated with the divorce proceedings. The family court dismissed each lis pendens and granted the husband a power of attorney for his ex-wife’s son to sell the property. The wife’s son appealed. The Appellate Division affirmed, agreeing with the family court’s decision to compel the sale. It found that the property was a marital asset subject to distribution. The Court noted the injustice to the husband and the innocent third-party buyers if they were not permitted to proceed with the closing. It rejected the wife’s son’s claim that the property should not be sold until the partition suit was resolved. It also noted that, in a suit for partition, property is not divided; rather it is sold and the proceeds are divided. For that reason, there was no reason to delay the sale until the interests were determined to the detriment of the innocent purchasers. The Court also agreed with the family court’s finding that the wife’s son had no interest in the property, as he did not contribute to the initial funds needed to purchase the property, did not contribute to the funds or labor needed to fix it up, and did not contribute to the monthly mortgage payments. Therefore he had no interest in the property merely because he was listed on the deed.


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