Short answer: Yes — but only if, under Vermont law and the timeline of the foreclosure or tax sale, you already held a valid survivorship interest when the court or sale fixed who owned the property. Asserting a right of survivorship can change who is entitled to surplus proceeds, but you will need the right documents and must meet court rules and deadlines to claim that larger share.
How surplus funds work in Vermont (plain language)
When a property is sold after a foreclosure or court-ordered sale, the lender and other creditors who had priority liens are paid from the sale proceeds first. Any money left over after paying those claims — the “surplus” or “overage” — generally belongs to the person or people who owned the property free of those liens at the time the court treats ownership as fixed for distribution. Vermont’s courts manage distribution of sale proceeds in foreclosures and related actions. For general statutory resources, see the Vermont Statutes and Vermont Judiciary websites: https://legislature.vermont.gov/statutes/ and https://www.vermontjudiciary.org/.
How a right of survivorship (joint tenancy with survivorship) affects who owns the property
A recorded deed that creates a joint tenancy with right of survivorship means that when one owner dies, title automatically vests in the surviving joint tenant(s) without probate. If the death occurs before the moment the court or sale fixes ownership for distribution, the survivor may be the sole owner and therefore entitled to the full surplus (subject to any lien priorities). If the death occurs after the ownership is fixed for distribution, the deceased owner’s share may be handled differently (for example, as part of the decedent’s estate).
Key timing rules — why timing matters
- If the joint tenant died before the foreclosure sale or before the court set the record date for distribution, the survivor likely has the stronger claim to the surplus.
- If the joint tenant died after the sale or after the court fixed who was an owner for distribution purposes, the surplus may be paid to the person(s) who were owners at that critical date — which could be the decedent’s estate or heirs.
- Courts use specific event dates (date of sale, date of confirmation, or other statutory dates). That means you must know which date the court used to determine ownership and lien priority in your case.
What you must prove to assert a survivorship claim on surplus funds
To convince a court or the clerk handling surplus funds that you are entitled to a larger share based on survivorship, you will typically need:
- A certified copy of the recorded deed showing joint tenancy with right of survivorship (or other instrument creating survivorship rights).
- A certified copy of the decedent’s death certificate showing the death date.
- Proof of the chain of title and any instruments (mortgages, assignments) that affect priority.
- Documents showing the timing of the foreclosure sale and any court orders that fixed the distribution date (order of sale, confirmation order, clerk’s notice, etc.).
- Any affidavits, sworn statements, or court forms required by the local court to claim surplus funds.
Common complications that can defeat a survivorship claim
- If the deed didn’t actually create survivorship (many deeds list people as “joint tenants” or “tenants in common” without clear survivorship language), you may not have a survivorship right.
- If both joint tenants executed the mortgage or the debt covered only one tenant, the lender’s rights and priorities can change the net distribution.
- Pending probate or estate claims: if the court tied distribution of the surplus to the decedent’s estate, you may need to coordinate with the probate process.
- Missed deadlines: courts or clerks often require claims for surplus within a limited time. Missing the deadline can forfeit your right.
- Unrecorded agreements or equitable claims (e.g., constructive trust, partition claims) can complicate distribution and may require a separate court proceeding.
Practical steps to assert a survivorship interest and claim surplus funds
- Act quickly. Find the court file or clerk’s notice in the foreclosure matter and note any deadlines for claiming surplus funds.
- Get certified copies of the recorded deed and the decedent’s death certificate from the town clerk or vital records office.
- Run a title search or request a certified copy of the land record to show the recorded ownership and any liens.
- Prepare the paperwork the court requires to claim surplus funds (often an affidavit, application, or motion). The local court clerk can tell you what form to use.
- If the clerk rejects your claim or if other parties contest your right, file a formal motion or petition in the court handling the foreclosure so a judge can resolve competing claims.
- Consider hiring a Vermont attorney experienced with foreclosures, title disputes, or probate to present the claim and evidence to the court if the amount at stake is significant or if the claim is contested.
Where to look in Vermont law and court resources
Vermont’s statutes and court rules govern foreclosure procedure, distribution of sale proceeds, and property recording matters. For the statutory text and court procedures, start here:
- Vermont Statutes (general search): https://legislature.vermont.gov/statutes/
- Vermont Judiciary (court forms and local rules): https://www.vermontjudiciary.org/
- Town and county land records offices (recorded deed copies and recording information): check your town clerk’s website for links and fees.
When you should consult an attorney
Seek a Vermont attorney if any of these apply:
- The surplus amount is substantial.
- Your claim is contested by other parties (heirs, creditors, trustees).
- Title records are ambiguous or the deed doesn’t clearly create survivorship.
- Deadlines are short or you need to file a motion in court.
Helpful Hints
- Locate the recorded deed first. Survivorship depends on the deed’s wording and recording date.
- Get a certified death certificate as early proof; courts expect official documentation of death.
- Ask the court clerk what form you must file to claim surplus funds and what filing deadlines apply.
- Keep copies of all recorded documents, filings, and courier receipts — courts may require certified or recorded copies.
- Even if you believe you automatically succeeded to title by survivorship, confirm the court’s distribution date to avoid surprises.
- If you find conflicting claims, don’t settle informally without legal advice; a mistaken release can forfeit a legitimate claim.
Disclaimer: This article explains general legal principles under Vermont law for educational purposes only. It is not legal advice and does not create an attorney-client relationship. Laws and court procedures change. For advice about a specific situation, consult a licensed Vermont attorney.