In 2016, I was bequeathed a terraced cottage jointly with another sibling. For five years, it has lain empty and deteriorating. The other sibling, despite a string of unkept promises, will not engage to market the house for sale or otherwise.
Furthermore, the sibling changed the locks in 2016 despite then promising to send a key, which I never received. I therefore have no access to the property. The probate was drawn out but the title is in both our names. I’ve a number of questions arising from all this.
First: am I legally entitled to a key – and if so, how can I enforce that?
Second: are there circumstances whereby I can force a sale and if so, how would I do that?
Third: can my sibling take unilateral action such as placing someone in the house without my express permission?
I note you were bequeathed the cottage ‘jointly’ with another sibling and that the title is in both of your names. It is not clear if you and your sibling own the cottage as joint tenants or tenants in common, although I suspect the latter is more likely. Irrespective of the type of tenancy, each of you as co-owners has an equal right to possession of the property.
As a co-owner, you are entitled to a key. You should insist on getting a key from your sibling and if one is not forthcoming, it would be open to you to change the locks and then furnish a new key to your sibling. Although this would be a last resort.
I think a sale is the most workable solution and it is much easier to divide sale proceeds and move on rather than owning a property together. Co-ownership may be ended by partitioning the property (literally dividing the cottage, which is not a very practical solution) or by sale in lieu of partition. You could apply to court for an order for the sale of the cottage which would be granted, “unless it (the court) sees good reason to the contrary”.
As co-owners, you each have an equal say as regards all matters to include who stays in the house either as caretaker or as tenant. Your sibling therefore should not allow someone to stay in the house in the absence of your permission.
As a first step, I think it would be helpful to discuss your concerns with your sibling. You might consider mediation if agreement cannot be reached. Thereafter you have the option of making a court application to have the cottage sold. There would be considerable costs associated in making a court application so an agreement to sell the cottage, particularly given our current market, would be preferable.
My brother passed away and left his house to his two siblings – myself and my sister. There was no mortgage outstanding on the property and my brother had no wife, partner or children. The property is currently going through probate and my sister and I disagree over whether we should be renting it out or having a caretaker reside in it rent-free. My sister says we are not allowed to rent it – is that correct?
Gemma, Co Wexford
As you are still going through the probate process, the executor named in your brother’s will is the person entitled to make any decisions. The executor should consult with you both as beneficiaries.
The house could be rented out – in which case, the lease would be between the executor on behalf of the estate and the tenant. Any monies received would be liable for income tax and the estate would need to register for tax. It is most likely that the Revenue Commissioners would deem that you and your sister become beneficially entitled to your brother’s house when the grant of probate issues. This means that from this date, any rent would be deemed to belong to you and your sister directly.
In the alternative, the executor may allow somebody to stay in the house rent-free in which case it would be advisable to prepare a caretaker’s agreement.
I wonder are you and your sister considering selling your brother’s house in the short-term? If so, it may be more hassle than it is worth either renting the house or entering into a caretaker’s agreement. But either option is legally possible.
My father passed away recently and left his entire estate to his four children (myself, my sister and my two brothers). The will states that all my father’s assets are to be realised into cash and divided equally between the four of us.
I am the eldest child and the executor of the will. As we are all in our thirties and forties, we have all long moved out of the family home – apart from my younger brother, who moved back in with my father four years ago.
My younger brother never paid any rent or bills when he moved back in with my father. He also assumed he would be left the house when my father passed away and was shocked when he read the will. My younger brother insists the house was promised to him verbally by my father when my father was still alive. So he is now refusing to leave the house, he is refusing to let valuers into the house (for the sake of probate) and he is refusing to cooperate with any of his siblings – or the solicitor.
My other siblings and I want to sell my father’s home – and we feel our younger brother, who currently has no savings, would be able to buy his own place with his portion of the sale proceeds.
Does our younger brother have a right to stay in the home and if not, how can we enforce the sale of our father’s home as smoothly as possible?
In the event that my younger brother has a right to stay in the home, what can we do to ensure we get the share of the estate which my father had in mind for each of us?
Helen, Co Wicklow
It is helpful that you are named as executor of the will as this puts you in a strong position to ensure that your dad’s wishes as per his will take effect.
When your dad was alive, your younger brother was entitled to move back into the family home and stay as this was what your dad wanted.
On your dad’s passing, this arrangement changed and you as executor had and have authority to make decisions.
As executor pursuant to Section 50 of the Succession Act 1965, you have the power of sale. You are obliged to take the views of the beneficiaries into account and in the case of dispute, of the majority.
Your brother does not have any right to stay in the house at this stage. A verbal promise if made is not enforceable.
However your brother could claim a right to the property on the basis of promissory estoppel. (Promissory estoppel is a legal principle which stops a person from going back on their word – even if a legal contract does not exist).
You will want to retain family relations as much as possible and afford your brother an opportunity to find alternative accommodation. Another option you could explore is to sell the house to your brother.