Detailed Answer
Quick summary: If a co-owner of inherited real estate in Massachusetts borrows against the property or refinances without your approval, the lender generally can only reach the borrowing co-owner’s legal interest in the property, not your separate share. That loan may create a lien against the borrower’s interest and may lead to foreclosure of that interest only. You have statutory and equitable remedies, including contesting the mortgage, seeking quiet title, or pursuing partition. This is a general explanation and not legal advice.
How ownership type controls what can happen
First, identify how the deceased owner’s interest passed to you and the other owner(s). Two common forms of co-ownership after an inheritance are:
- Joint tenancy with right of survivorship — co-owners share equal interests and the right of survivorship means the surviving co-owners automatically inherit on death.
- Tenancy in common — each co-owner owns a specific share that can pass under a will or by intestacy.
Which form applies affects what a single co-owner can do. Check the recorded deed or the decedent’s probate documents to confirm ownership form.
What a unilateral refinance or home equity loan usually accomplishes
A lender normally requires the signature of whoever appears on title as an owner. If a co-owner signs a mortgage or refinance application alone, the practical and legal outcomes under Massachusetts law are often:
- The mortgage or loan creates a lien on the signing co-owner’s recorded interest in the property. It generally does not automatically encumber your separate co-owner share if you did not sign.
- If the borrower’s recorded mortgage attempts to cover the entire property, the mortgagee’s actual security may be limited to the borrower’s fractional ownership interest. A subsequent foreclosure by that lender could only foreclose the borrower’s interest in most circumstances.
- If the co-owner conditioned the mortgage on misrepresentation or forged signatures, the mortgage may be void or voidable against the other co-owner(s). Forgery is a criminal act and also supports civil claims.
What can a lender or purchaser at foreclosure realistically obtain?
If a foreclosure occurs based on a mortgage signed by only one co-owner, the lender or purchaser at the sale typically acquires the foreclosed co-owner’s share—not the entire title, unless the lender can show that the borrower had authority to encumber the whole estate. That may reduce the purchaser’s practical ability to control or occupy the whole property without further litigation (for example, filing for partition). See general rules on conveyances in Massachusetts: Mass. Gen. Laws ch. 183 (Conveyances).
Remedies available to a non-consenting co-owner
Your remedies depend on the facts (e.g., whether your signature was forged, whether you ratified the loan, whether the lender reasonably relied on apparent authority). Common remedies include:
- Demand the lender provide full loan documents and chain of title. Lenders normally record mortgages; obtain copies from the registry of deeds.
- Quiet title or confirmatory action to clear or limit the mortgage’s application to the borrower’s share.
- Seek injunctive relief if you can show imminent harm (for example an impending foreclosure sale based on a forged signature).
- Pursue a partition action if co-ownership becomes intolerable or one co-owner’s conduct makes continued joint ownership unfair. Partition can force sale or physical division of the property.
- Bring tort or contract claims if the co-tenant engaged in fraud, conversion, or forged your signature—these may include civil claims and potential criminal referral.
Massachusetts law provides foreclosure procedures and remedies for mortgage actions. See general foreclosure and mortgage procedures: Mass. Gen. Laws ch. 244 (Actions, Forcible Entry and Unlawful Detainer; certain foreclosure procedures are covered here).
Practical examples
Example A: The property is held as tenants in common (you own 50%). A co-tenant signs a refinance deed of trust alone. The lender records a mortgage. If the co-tenant later defaults, the lender usually forecloses only on that co-tenant’s 50% interest. You still own your 50%, but the buyer at the foreclosure sale may hold the other 50% and could seek partition.
Example B: Your co-tenant forged your signature on the mortgage. You can pursue a court action to declare the mortgage void as to your interest, file a police report for forgery, and ask the court for emergency relief to stop a foreclosure sale.
Important timing and proof issues
Act quickly. Lenders and purchasers rely on recorded documents. If you suspect an impropriety, gather title records, recorded mortgages, correspondence, and any proof about the ownership arrangement. Early steps often include contacting the registry of deeds, requesting the lender’s loan documents, and consulting counsel to determine whether emergency relief (like an injunction or lis pendens) is appropriate.
When the co-tenant could have authority
If you previously agreed in writing that a co-tenant could mortgage the whole property (for example, by an express power of attorney or a signed agreement), the lender may have valid rights against the property consistent with that agreement. Ratification or apparent authority can change the outcome.
Next practical steps
- Confirm recorded ownership and mortgage documents at your county registry of deeds.
- Request copies of the loan and mortgage from the lender.
- Preserve evidence (emails, texts, signed documents) and document any communications with the co-tenant and lender.
- Consider immediate legal steps if foreclosure is pending, you suspect forgery, or the co-tenant misused funds.
- Consult a Massachusetts attorney experienced in real estate litigation and title disputes to evaluate your specific facts.
Disclaimer
This article provides general information about Massachusetts property and mortgage principles. It is not legal advice. For advice about your particular situation, consult a licensed Massachusetts attorney.