Will Our Existing Property Restrictions Apply in the New Deed?

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My ex-husband and his brother bought a piece of land together years ago. His brother has since married and has step kids. Does my ex have the right to kick the kids and their friends off the property? It is empty land with a pond. It was agreed on years ago when they bought it that no one would allow anyone else to go out there including kids unless one of the brothers was there. My ex is going to deed it to our kids and if this happens will they have the right to kick them off? I guess what I am wondering is does it have to be agreed by both parties who is allowed to go out there and can my ex call the law to have the step kids removed if they are by themselves? Thanks.

[NOTE: Articles and answers on DearEsq., while written and published by lawyers, do not constitute legal advice, and no attorney-client relationship is formed by your reading of this information. You should always consult with an attorney for any legal situations.]

The answer is going to depend on the particular details of your situation. Ordinarily, co-owners of property share what is called an “undivided” interest in it, meaning that you don’t draw a line down the middle like a ’60s sitcom, but rather you each have the right to use the whole property. Neither owner can exclude the other from reasonable use. Use of a property will often include the right to have family or guests use it. After all, if you were the sole owner, you could let your kids use the property, right? Which brings us to the agreement you mentioned. If there is an agreement between the actual owners that, for example, there won’t be any guests without an owner present, that could be an enforceable agreement. BUT, in my experience, law enforcement doesn’t like to enforce those sorts of agreements directly. You can certainly try (it won’t hurt), but don’t be surprised if the police or sheriff tells you it is “a civil matter,” that you’ll have to enforce via a lawsuit. The best course of action, if you don’t have one already, is to have all the owners make up a written co-ownership agreement (preferably with the help of an attorney). This won’t get you past the enforcement problem I mentioned above, but will get all the issues out in the open–and let you know if there are any un-resolvable issues where you should think about not owning the property together anymore.



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Author: House Attorney