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Real estate / tenant / landlord issue concerning will

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WeNeedAdvice

Junior Member
What is the name of your state (only U.S. law)? North Carolina.

Well let me start off by saying I am not sure if I am asking this in the right place or not since it kind of covers 3 different areas. If I am asking in the wrong place I apologize. I also know this may be a lot of information to read however I am trying to cover as many facts here as possible. I am removing any names for obvious reasons.

Now to get to the facts, My wife's mother passed away a few years back and her home was left to her husband (my wifes step-father) and her children and stepson. The home was purchased by my wifes mother who was a single mom at the time and the "husband" (which I will use to refer to him) was not even in the picture until about 11 years later. The husband lived in the home for a couple of years after she passed away before moving out to live with his girl friend. Prior to moving in with her, he asked my wife and myself if we would be interested in renting it. We discussed rent money to basically cover the bills, taxes, and insurance as he was going to leave the power and cable in my wifes mother's name. We agreed and he was supposed to let us know when or if he decided to move in with her. We found out a couple months later he had contacted a realtor to rent out the home without discussing it with any of the kids and was getting ready to rent the home out to a stanger. In the process we also found out he offered it to my wife's neice right after we had first talked and agreed on it. We immediately went to him to go back to what we had discussed. We agreed to rent the home however he had jacked up the rent as well as was not covering any utilities with it. We have been in the home for over a year now and now he wants to go up on the rent again, force us to pay him to keep the yard up, make us get rid of our dogs (which he knew about prior to us moving in and whom have been in the house the whole time and have never tore up anything), as well as many other things. We also found out that he let the homeowners insurance lapse and has not been carrying any insurance on the home for a number of months now. Numerous times we have had to deal with him calling my wife up at work yelling, screaming, and cursing at her as well as showing up at my wifes job and here in the yard doing the same thing to us through out our time here. Out of our time here we have been late with the rent only once and that was only for a couple of days due to my mother being admitted into the hospital. He constantly tells us one thing and then gets mad when we follow what he asked us to do. There are also several things wrong with the home and he wont fix them such as leaking faucets, a door jam thats busted (was kicked in the day he moved out and prior to us moving in - someone broke in), a sidewalk thats a huge tripping hazzard, etc.. Without getting into too much on him here and attacking his character, he is not a very nice person to say the least. If it were not for the sentimental value of the home to my wife as well as a personal interest here we would have moved a long time ago.

This is the part from the will (names and locations removed for obvious reasons) that covers the property...

I devise my real property located and known as (subdivision name and location here) having the street address of (address here) lying in (county name here) to my husband, (husband name here), for the term of his natural life with the remainder to my children, (childrens names here) and my stepson (stepsons name here), in equal shares. With the consent and joinder of my children, my husband, (husbands name here), may choose to sell this property during his lifetime, however, as a specific charge upon this devise, the net proceeds of such sale shall be divided equally among my children, (childrens names here) and my stepson, (stepsons name here), and my husband (husbands name here).

I guess basically what I am asking here is...

1) Can he rent the home without the childrens permission?

2) If so can he charge us rent for something that is partially ours to start with?

3) If so does the rent go to him or split up among the parts?

4) Can he dictate to us what we can and cant do in and at our own home?

5) Can he move us out?

6) Who is responsible for taxes, insurance, and repairs?

7) Who gets sued if someone gets hurt on the property?

8) Can he force us to pay him to keep up the yard?

9) What can we do about the harrassment from him?

10) Can he force us to get rid of our dogs?

11) Is there any kind of way he can sell the property without all the children signing off on it?


Any other advice you can provide too would be much appreciated. Thanks for you time and help.What is the name of your state (only U.S. law)?
 


CLJM

Member
What is the name of your state (only U.S. law)? North Carolina.
This is the part from the will (names and locations removed for obvious reasons) that covers the property...
Quote:
I devise my real property located and known as (subdivision name and location here) having the street address of (address here) lying in (county name here) to my husband, (husband name here), for the term of his natural life with the remainder to my children, (childrens names here) and my stepson (stepsons name here), in equal shares. With the consent and joinder of my children, my husband, (husbands name here), may choose to sell this property during his lifetime, however, as a specific charge upon this devise, the net proceeds of such sale shall be divided equally among my children, (childrens names here) and my stepson, (stepsons name here), and my husband (husbands name here).




I guess basically what I am asking here is...

1) Can he rent the home without the childrens permission?

2) If so can he charge us rent for something that is partially ours to start with?

3) If so does the rent go to him or split up among the parts?

4) Can he dictate to us what we can and cant do in and at our own home?

5) Can he move us out?

6) Who is responsible for taxes, insurance, and repairs?

7) Who gets sued if someone gets hurt on the property?

8) Can he force us to pay him to keep up the yard?

9) What can we do about the harrassment from him?

10) Can he force us to get rid of our dogs?

11) Is there any kind of way he can sell the property without all the children signing off on it?


Any other advice you can provide too would be much appreciated. Thanks for you time and help.What is the name of your state (only U.S. law)?

Has the wife's estate been probated and closed---with the new ownership deed recorded ?

The husband has a "life estate" and is a "life tenant"; the right to possess and use the property for life. The children are "remaindermen"; a remainder interest is a future interest--it passes to the children after the intervening interest which, is the life estate. The remaindermen do not have the right to possess or use the property until their interest passes to them.

If the husband and the children agree jointly to sell the home before his death, they can, and the proceeds divided equally.

The husband, in his life estate, has the use of the home and can rent it out without approval and/or consent. He may charge and retain the rent because the children are "remaindermen" with the future interest. The rent is his through his possession and use. It is his home for his lifetime, therefore he can "dictate" in regards to renters, rent, house and yard. Generally, when the Will is silent as to the payment of taxes, ins., etc, since he has the use and possession, it is his responsibility. (Is why I asked the question about probate---the administrator, before closing would generally address this)
Of course, it is absolutely imperative that the remaindermen confirm that the house is always insured, taxes are paid, and maintenance done because they have their "remainder" interest and that must be protected for their eventual ownership.

As you are his renters, you should have a rental agreement (I surely hope you do) stipulating all concerns: term of lease, amount, yardwork, dogs, expected maintenance, etc. ---just as any written agreement between a landlord and the tenants. The rental agreement is the contract between you.

Even though this is "family", remember, it's not personal, it's BUSINESS.
 

justalayman

Senior Member
1) Can he rent the home without the childrens permission?
yes

2) If so can he charge us rent for something that is partially ours to start with?
yes because that partially is not effective until he dies

3) If so does the rent go to him or split up among the parts?
to him

4) Can he dictate to us what we can and cant do in and at our own home?
it is his home for all practical purposes.

5) Can he move us out?
yes

6) Who is responsible for taxes, insurance, and repairs?
he is

7) Who gets sued if someone gets hurt on the property?
that is up to the plaintiff but probably him and if you are a renter, you might too

8) Can he force us to pay him to keep up the yard?
yes

9) What can we do about the harrassment from him?
You can move out of his house

10) Can he force us to get rid of our dogs?
yes

11) Is there any kind of way he can sell the property without all the children signing off on it?
no
 

Stephen1

Member
1) Can he rent the home without the children's permission? - This needs to go to an attorney. I'm not sure whether the answer will be either (1) he can do anything he wants w/the house short of selling it or (2) he has to either live in it or sell it but he can't rent it out. This should have all been addressed in the documents that set up this arrangement.

My answers to the following questions assume that he has the right to rent out the property. If you are on a lease that has not yet expired, he can not change it. He could modify it when it renews. Or you are on a month-to-month agreement in which case he can give you appropriate notice (usually 30 days) and change the agreement. For your part you get to agree to the changes or find somewhere else to live.

2) If so can he charge us rent for something that is partially ours to start with? - It is not partially yours until he dies or sells it. From a tax standpoint, he will have trouble w/the IRS if he rents it to family/friends for less than fair market value. He should charge fair market rates.

3) If so does the rent go to him or split up among the parts? - Rent goes to him.

4) Can he dictate to us what we can and can't do in and at our own home? - He is the landlord and gets to set limits on what can and cannot occur.

5) Can he move us out? - Yes. He has the right to not renew your agreement. If you don't leave then he may file in court for eviction.

6) Who is responsible for taxes, insurance, and repairs? - The landlord is responsible for taxes. Whether they carry insurance on the dwelling or for liability is up to them. If there is a mortgage then the mortgage company usually requires fire coverage. Insurance for your possessions is your responsibility/choice, not the landlord's. Repairs - some landlords shift all or at least minor repairs to the tenant. Most of us landlords are responsible for repairs. However, just because you think something needs to be repaired doesn't mean the landlord will agree. If it is a health or safety issue then the government may become involved.

7) Who gets sued if someone gets hurt on the property? - Usually everyone. That is what liability insurance is for. If the landlord was not responsible for the problem that led to the injury or the landlord was not aware of the problem, then I wouldn't expect him to be responsible.

8) Can he force us to pay him to keep up the yard? - What does the rental agreement say? He can say that you pay $XX for yard maintenance and then you have to either pay it or decide to leave.

9) What can we do about the harassment from him? - What is he harassing about? Illegal harassment has to do with repeated contact w/o any legal/business reason. If he is looking for your late rent or complaining about the condition of the house or yard then that sounds like what a landlord is supposed to do.

10) Can he force us to get rid of our dogs? - What does the rental agreement say? He can say "no dogs" and then you have to either get rid of the dogs or decide to leave.

11) Is there any kind of way he can sell the property without all the children signing off on it? - Check with your attorney. It sounds like you are not happy with him owning the property. Why would you deny him the ability to get the property off his hands? Perhaps the children could as a group buy him out. Then they would jointly own the property and would have had to pay him only his share.
 

justalayman

Senior Member
11) Is there any kind of way he can sell the property without all the children signing off on it? - Check with your attorney. It sounds like you are not happy with him owning the property. Why would you deny him the ability to get the property off his hands? Perhaps the children could as a group buy him out. Then they would jointly own the property and would have had to pay him only his share.
he does not own the property. He owns a life estate in the property. If he does not want to sell his interest, there is nothing the children can do about it as long as the life tenant does whatever is required of a life tenant.

He does not have "a share" in the property. He is entitled to hold the property for the term of his life.

He cannot sell "the property". All he can sell is his life estate (btw: just like he can rent out his life estate). That is not an ownership interest.
 

ecmst12

Senior Member
You need to make sure you have appropriate renters insurance to protect YOU. Whether your landlord carries proper insurance is not your concern.
 

CLJM

Member
The "remaindermen"---your wife, her siblings and step sibling certainly need to make sure the home is properly insured. Though their interest is a future interest--- it must be protected for that future interest.
 

justalayman

Senior Member
The "remaindermen"---your wife, her siblings and step sibling certainly need to make sure the home is properly insured. Though their interest is a future interest--- it must be protected for that future interest.
I suggest the remaindermen obtain their own insurance. The life tenant is not required to obtain insurance and is only liable for actions caused by his own negligence. If the place burned down due to, as an example, a lightning strike, the life tenant would not be liable for the building. Both the life tenant and the remaindermen would lose out on such a situation.

Now, if the life tenant caused the house to burn down, he would be liable to the remaindermen. The problem is; good luck getting the tenant to pay for the loss. Unless the tenant was willing to open his checkbook and write a check for the loss, the remaindermen would have to sue him for the damages. If he is not able to pay for the damages, the remaindermen will simply be stuck with the loss.
 

CLJM

Member
I suggest the remaindermen obtain their own insurance. The life tenant is not required to obtain insurance and is only liable for actions caused by his own negligence. If the place burned down due to, as an example, a lightning strike, the life tenant would not be liable for the building. Both the life tenant and the remaindermen would lose out on such a situation.

Now, if the life tenant caused the house to burn down, he would be liable to the remaindermen. The problem is; good luck getting the tenant to pay for the loss. Unless the tenant was willing to open his checkbook and write a check for the loss, the remaindermen would have to sue him for the damages. If he is not able to pay for the damages, the remaindermen will simply be stuck with the loss.
Justalayman,

I am not so sure he isn't required to maintain the insurance, as well as taxes, and the home maintenance. But, regardless of who ensures, it is vital that the remaindermen see that it is, and the best way to do that is insure it themselves. But, also too, the life tenant has more than just a life estate stake in the house. If he and the children jointly agree to sell, he also gets an equal cut from the sale proceeds.
 

tranquility

Senior Member
If he and the children jointly agree to sell, he also gets an equal cut from the sale proceeds.
They are two separate interests. The value of either depends on the sale. Why is it important? Not only is it relevant to the taxation of the sale (What is the basis allocation of the property?), but also it is relevant for certain fancy scenarios. (Like QPRTs.)

If the cut is "equal", that is going to be an odd set of facts.
 

CLJM

Member
They are two separate interests. The value of either depends on the sale. Why is it important? Not only is it relevant to the taxation of the sale (What is the basis allocation of the property?), but also it is relevant for certain fancy scenarios. (Like QPRTs.)

If the cut is "equal", that is going to be an odd set of facts.
Tranq,

The OP only gave limited information.

Quote:
I devise my real property located and known as (subdivision name and location here) having the street address of (address here) lying in (county name here) to my husband, (husband name here), for the term of his natural life with the remainder to my children, (childrens names here) and my stepson (stepsons name here), in equal shares. With the consent and joinder of my children, my husband, (husbands name here), may choose to sell this property during his lifetime, however, as a specific charge upon this devise, the net proceeds of such sale shall be divided equally among my children, (childrens names here) and my stepson, (stepsons name here), and my husband (husbands name here).
 

tranquility

Senior Member
That would probably not be an enforceable part of the bequest. We don't much like people handling property from the grave. Either the father has a life estate or not. If we claim the estate is defeasable if the property was sold, was there a present interest in the land or not?
 

CLJM

Member
That would probably not be an enforceable part of the bequest. We don't much like people handling property from the grave. Either the father has a life estate or not. If we claim the estate is defeasable if the property was sold, was there a present interest in the land or not?
Both---as you said, two separate interests. A life estate, which is his present interest for his natural life. Or, if in joint agreement with the children, he can choose to sell and receive equal share of proceeds.

Doesn't seem so "equal" to me....seems more in his favor.
 

justalayman

Senior Member
he cannot sell the property because he does not own the property. He can sell his life estate though and if it is agreed the remainder of his life estate is worth the same amount as a remaindermen's share of the actual property, that can be done. It is a very odd agreement but it is possible.

the thing is; this can be done without any directives within the will.



I am not so sure he isn't required to maintain the insurance, as well as taxes, and the home maintenance.
No, he is not required to maintain insurance. Taxes and general maintenance are something entirely different. If taxes are not paid or the home not maintained, the tenant will be committing waste and cause either a devaluation or an actual total loss of value of the remaindermen's shares. Failing to carry insurance causes no loss to anybody. Tenant cannot be forced to carry insurance without a contractual agreement OR unless it is stated in the will that the tenant must insure the property but that is problematic and, unless written extremely well, is going to be difficult to enforce.
 

CLJM

Member
OP gave us the quote from the Will:

Quote:
I devise my real property located and known as (subdivision name and location here) having the street address of (address here) lying in (county name here) to my husband, (husband name here), for the term of his natural life with the remainder to my children, (childrens names here) and my stepson (stepsons name here), in equal shares. With the consent and joinder of my children, my husband, (husbands name here), may choose to sell this property during his lifetime, however, as a specific charge upon this devise, the net proceeds of such sale shall be divided equally among my children, (childrens names here) and my stepson, (stepsons name here), and my husband (husbands name here).
 

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