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My sister has lived in a property that was passed to us both in our parents' will. She has never offered to pay any rent in a mortgage-free house with her and her three children.

This has been going on for some years. I originally wanted to rent the property, but due to a failed marriage, my sister wasn’t in that position. If my dad was still with us, she would have had to rent, but he passed away the same time that her marriage collapsed.

So my sister lives in a three-bedroom house all paid for, working, with her divorce money. I want to ask for my 50% of rental income. Can I legally do that?

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    What about selling her your half of the ownership instead? Legal questions would need to be on Law
    – D Stanley
    Commented Mar 16, 2023 at 14:43
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    Are you "joint tenants" or "tenants in common" ? Legally this makes a huge difference. (There is no such thing as a 50% share in joint tenancy.) Commented Mar 16, 2023 at 18:07
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    You currently have a sister. If you take any legal action to force her out (to sell the place) or any other forced action that adversely affects her (and her children !), your relationship with your sister may suffer very badly, possibly even beyond healing. Money is not the only thing you need to consider here. Commented Mar 17, 2023 at 18:38
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    Do you NEED the rental income?
    – barbecue
    Commented Mar 17, 2023 at 21:31
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    Don't forget one option: lease with option to buy. If she can't afford it currently, this could be a fair way for her to buy it "over time". Commented Mar 19, 2023 at 7:30

4 Answers 4

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I can't speak to the legality of forcing her to pay rent (it seems hard to do that when she partially owns the house). But I would definitely be frank with her that she is getting 100% of the benefit of the house with only 50% ownership. The simplest options are either convince her to pay you for your share of the lost rent (she's still getting the house for half of what she could rent it for) or to sell her your share for half the market value - in which case she's got full ownership and paying off half of the equity over time. She may not care, in which case it's more of a relational problem.

You would think that the worst case is that you'd get 50% of the proceeds when the house is eventually sold. But it could be worse than that. If the relationship sours, there could be spiteful actions like ripping out appliances or trashing the house to kill the market value.

I have seen people that are destined for foreclosure absolutely gut a house so that they at least get some value out of it by scalping appliances (even central air conditioner units), and let the bank take the hit on the drop in market value.

Again, this is not legal advice - you'll have to speak to a local attorney (or see if you get any help on [law.se]), but it may be a no-win situation for you. You may need to choose between the income from the house and your relationship with your sister.

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  • "I have seen people that are destined for foreclosure absolutely gut a house so that they at least get some value out of it by scalping appliances" — wouldn't that get them into trouble? In our mortgage contract (Germany) it says we can't tear down the house without the bank's approval (extreme case).
    – gerrit
    Commented Nov 17, 2023 at 13:33
  • In trouble with whom? The bank has already foreclosed, so there's nothing left for the bank to take - it just reduces the value of the house when the bank resells it. And by "gut" I mean taking out all of the appliances, fixtures, etc. to resell them (even outside A/C units). Not necessarily destroying walls or structural components.
    – D Stanley
    Commented Nov 17, 2023 at 14:31
  • If the bank repossesses the house, then the borrower / former owner no longer owns it, and would have no rights to it any more?
    – gerrit
    Commented Nov 17, 2023 at 14:41
  • Correct. The bank takes the title and effectively owns the house. They typically sell it at auction and sue the debtor for whatever they owe less what the house sold for.
    – D Stanley
    Commented Nov 17, 2023 at 15:01
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    If the bank owns the house, I would expect they are not happy if the occupant deliberately damages it, and might sue the occupant for doing so or report this to the police.
    – gerrit
    Commented Nov 17, 2023 at 21:14
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This should be an example to future readers on how just having a will and leaving assets which are not easily divided can create issues. No good can come of this type of situation.

As D Stanley commented, the best way to move forward is selling her your half. Timing is everything, and we are at a point of relatively high interest rates, which may make the purchase unaffordable.

As far as 'rent' goes, this may open a can of worms better left alone. If she is 'renting', she'll expect you to start to pay half the taxes, maintenance, etc. This may make your relationship even worse. Even settling for a lower price for your half may be preferable to this.

For the parents, knowing that their offspring aren't all going to live in the house, there are a number of choices -

  • The will gives the house to one child, and other assets are divided among the others.

  • Will states that the house is to be sold on death, and money divided.

  • Will offers a choice in which the child wanting the house is given the chance to finance it or work out an intra-family loan, else it is sold.

  • Will states “if children wish to keep and rent…..” along with some provision if later on one or more wish to sell, and others don’t. (Almost as bad as OP’s current situation.)

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  • It's pretty much standard for parents who own a house to leave it to their offspring. What would you suggest they should do instead? Commented Mar 16, 2023 at 15:35
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    Have a conversation in advance. 2 or more children aren't going to all live in the house. So the stage is always set for there to be issues. Will edit my answer. Commented Mar 16, 2023 at 15:39
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    "What the parents should have done differently" isn't answering the question. What's done is done.
    – Hilmar
    Commented Mar 16, 2023 at 17:51
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    Second and third paragraph answer the question. I maintain that there’s value to future readers who have an opportunity to avoid what, in my opinion, was a mistake. Commented Mar 16, 2023 at 18:09
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    @njzk2 ah, right. That comment predated the explicit list of options being added to the answer, which helped clarify a bit. For what it's worth, from a random sample of professionally drafted UK wills I have access to, 2 out of 3 actually do explicitly specify that assets should be sold (the term is "on trust for sale"). Commented Oct 11, 2023 at 13:47
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"I want to ask for my 50% of rental income. Can I legally do that."

You can ask. But, you don't have a legal right to it.

Co-owners of real property have a right to occupy the entire premises rent free, but can't exclude the other co-owners if they want to occupy the premises as well. You are only entitled to 50% of the fair market value rent for the premises if you try to occupy the property and are excluded from it by your co-owner. Even then, often the only practical way to collect that is as a credit in dividing the proceeds of a sale forced by a "partition action" in court.

If push comes to shove, your primary remedy is a "partition action". This is a lawsuit that you file in court in order to force the sale of the property (in a foreclosure style auction at which she, you, and any other member of the public may bid, unless otherwise agreed). Once the property is sold, the proceeds net of costs of sale are split evenly, possibly with adjustments for certain kinds of property related expenditures (the details of which can vary from state to state).

The only real defense to a forced sale in a partition action is an agreement not to partition the property (which isn't necessarily in writing), which is often claimed and rarely prevails. Usually, this is as a practical matter a way to stall the inevitable.

Once push comes to shove and a sale is about to be ordered, the parties usually agree to have a mutually acceptable realtor sell the house in the ordinary course with the occupant moving out, even if the parties can't agree on how to split the proceeds and have the proceeds paid into an escrow pending court disposition of the funds after a hearing on how to split them.

In the small law office share I work in, we do maybe half a dozen partition actions a year on average. There are more when real estate markets are stronger (because it creates enough equity to be worth hiring lawyers to fight over), and fewer when real estate markets are weaker (when the properties often aren't worth enough to fight over).

Caveats

  1. Married people who no longer want to co-own property because they are splitting up resolve issues like these in divorce cases or legal separation cases, rather than in partition actions, and different legal rules apply in divorces and legal seperations.

  2. In principle, a partition action can split up co-owned real estate "in kind" by subdividing the property into separate lots that are not co-owned. But, in practice, this is only an option for properties like farms and ranches, not for single family residences with only a minimal additional yard which often can't be subdivided as a matter of local subdivision ordinances and zoning codes.

  3. Often a threat to file a partition action can secure an agreement to pay rent or make some other economic value sharing arrangement.

  4. This answer doesn't address, as at least one other answer does, what might make sense morally and in terms of family ties, as opposed to legal rights. In the cases that make their way to my office, those considerations are lost causes already. Cutting a sibling who is in a tough place economically some slack is, of course, not an unreasonable thing to do regardless of your legal rights.

The broad outlines of the process in the United Kingdom are fairly similar to those of the United States in the simple case of two non-spousal adult co-owners.

In England, anybody who wants to sell the home they jointly own with one or more partners that don’t want to sell can apply for an order for sale. The process is fairly straightforward, and you can obtain an order for sale without appointing a solicitor. However, if there are added complications, such as resident dependents, it may be wise to seek legal advice.

The first step is to complete an N208 form. You will need to provide a few key details:

  • Evidence of the claimant’s financial interest (i.e. ownership) in the property

  • Details of the outstanding debt on the property

  • An estimated sale price

  • A witness statement that explains who the other owners are and their circumstances

For residential property, claimants must also confirm if any of the following have been registered against the property:

  • A Class F land charge

  • A notice under s.31 Family Law Act 1996

The form will be submitted to your nearest county court, which will reach a judgement. The court can grant or refuse the order for sale and this is detailed in the next subsection.

If the order for sale is granted, the property can be sold. The claimant can request that specific conditions be attached to the order, for example, a minimum sale price.

The tenant or tenants who do not want to sell have the right to oppose the order and request that the claim is rejected or postponed, but they must do this within 14 days of the date of service.

The different ways a court can order After an order of sale has been applied for, the court can award one of five different orders:

  • Order a sale

  • Refuse a sale

  • Order a sale but build a short delay into the order

  • Refuse a sale but make an order regulating the right to occupy the property

  • Partition the co-owned property – this is only awarded in rare cases

Where resident dependents are children, the court may order a sale with a delay so that the house can’t be sold until they are 18 or have left full-time education.

For resident dependents who may have severe disabilities, the court may order a sale with a delay until suitable alternative accommodation has been arranged.

Furthermore, if the property is currently titled in joint tenancy rather than in a tenancy in common ownership, it has to be converted to a tenancy in common ownership, which either owner can do unilaterally with a simple form (the quotation is from the same source):

If joint tenants disagree about whether to sell the property or not, the tenant who wishes to sell must change the joint tenancy into tenants in common by applying for a notice of severance. The Land Registry will also have to be informed to amend the title to the property.

More complicated cases could be much different. The U.K. handles co-ownership of property with more than four owners very differently than the U.S. The conveyancing and recording process in the U.K. are quite different. And, there are, of course, also fine procedural differences in the details of how it is done in terms of court procedure.

But, in substance, the bottom line conclusion is very similar.

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  • "Co-owners of real property have a right to occupy the entire premises rent free". Then why did I have to pay my (separated, then ex-) wife half of the fair market value of the rent on our house while I lived there?
    – RonJohn
    Commented Mar 16, 2023 at 17:36
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    @RonJohn Because different legal rules apply to spouses and ex-spouses, than to people who were never related by marriage. Divorce and legal separation law is looking at the entire relationship between the spouses and lumps everything in that relationship together. Non-divorce law is looking at a transaction involving a single piece of property in isolation. See caveat #1.
    – ohwilleke
    Commented Mar 16, 2023 at 17:53
  • Of course in California there's a state law that every property is allowed to build an ADU (auxiliary dwelling unit aka "mother-in-law unit"), suppressing local laws that limit each property to 1 dwelling (done to prevent urban densification). So one subdivision option is to build an ADU then subdivide. (of course this requires the city's approval; they may not agree to the division). Commented Mar 16, 2023 at 18:19
  • @Harper-ReinstateMonica Normally, a partition action takes the property as it exists at the term the suit is commenced, it can't order new construction. Also, the right to build an ADU usually does not automatically carry with it the right to subdivide. Where subdivision was available as a matter of right, however, the court could probably order it (but even then division in kind is only allowed where co-owners can be placed on roughly equal footing that way).
    – ohwilleke
    Commented Mar 16, 2023 at 18:48
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    Is this applicable to the UK? We don't generally go for worldwide answers on Money when a specific place has already been identified. Commented Mar 17, 2023 at 8:40
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The property accumulates expenses and repairs, even if your sister is not willing to invest in repairs, you have every right to maintain it. By taking responsibility for "your half", you can avoid the rent conversation all together. Broaching a discussion to cover costs is a different conversation than one about paying market rate rent.

The other answers clearly lay out your unilateral options, I don't dispute them, so this answer is trying to present a more bilateral approach. This does not achieve passive income in the short term, it is a step that shows leadership in your personal relationship with your sister instead of confrontation, in my opinion at least. Worst case, you will be made whole when the house is sold and keeping the depreciation in check will be a reward for both of you.

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