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You and Your Siblings Own a House Together (Partition Possible?)

Cartoon of two men fighting over a house

If you and your siblings end up owning a house together, what can you do? You probably don’t want to move in together. And in all likelihood, your brother or sister moved into the house and refuses to move out. What are your rights? The basic remedy is Partition (which means to either divide the property or to force the sale). There are other remedies available, such as getting a court award of back rent and possible attorney fees. Keep reading to learn more …

Partition.

The concept of partition dates to when most people were farmers and it was more common to inherit large tracts of farm land. In that case, if three kids inherited the farm land, they could get the court to divide the land in equal thirds so they could each get a chunk of their own land. Nowadays, with most people living in the city, it’s more common to inherit a house or other property that is not so easily divided. In such a case, what makes more sense is not to divide the property, but to sell it and divide the proceeds. This is called a Partition by Sale.

Partition by Sale.

In Arizona, a claim of Partition by Sale is grounded on A.R.S. § 12-1211, et seq. “[T]he fundamental objective in a partition action is to divide the property so as to be fair and equitable and confer no unfair advantage on any cotenant.” 59A Am. Jur. 2d Partition § 6. The court starts with the presumption that the parties own equal shares in the Property. See id. § 114. The burden of paying the necessary expenses of jointly owned property is the responsibility of all cotenants (unless one party has been excluded from having an equal right to possession). See id. § 154; see also 20 Am. Jur. 2d Cotenancy & Joint Ownership § 63 (2009).

Each joint owner has a separate interest in jointly held property. See In re Marriage of Berger, 140 Ariz. 156, 165, 680 P.2d 1217, 1226 (App. 1983). When the property cannot be physically divided, partition by sale is more equitable than division in kind of the property.

Rent.

Another question that can arise is whether a co-owner who had prior use of the property owes rent to the other co-owners. Here’s the rule.

Ouster.

“A tenant in common who does not have actual possession of the property may compel a cotenant in possession to account for rents and profits received from tenants on the premises.” See 59A Am. Jur. 2d Partition § 153. See also 20 Am. Jur. 2d Cotenancy & Joint Ownership §§ 63, (same), 66 (cotenant with exclusive possession does not have right to contribution). See also Cox v. Cox, 138 Idaho 881, 886, 71 P.3d 1028, 1033, (Idaho June 3, 2003), which stated:

Though a settled issue in many states, no Idaho court has decided the issue of whether an ousted co-tenant is entitled to a proportion of the fair rental value of common property. The majority rule is that when one co-tenant excludes another co-tenant from use and possession of common property, the excluding co-tenant is liable for the value of their exclusive use of the property, including rent. Sack v. Tomlin, 110 Nev. 204, 871 P.2d 298, 306 (Nev. 1994); Palmer v. Protrka, 257 Or. 23, 476 P.2d 185, 190 (Or. 1970) (when difficulties in personal relationships between co-tenants make co-occupancy impossible, the excluded co-tenant is entitled to the rental value of their interest in the property); Ireland v. Flanagan, 51 Or. App. 837, 627 P.2d 496, 500 (Or. App. 1981); Maxfield v. Maxfield, 47 Wn. App. 699, 737 P.2d 671, 676 (Wash. Ct. App. 1987) Cummings v. Anderson, 94 Wn.2d 135, 614 P.2d 1283, 1289 (Wash. 1980) (where property is not adaptable to double occupancy, the mere occupation by one co-tenant may operate to exclude the other). This Court adopts this position.

(Emphasis added.)

In Northcutt v. McPherson, 81 N.M. 743, 745, 473 P.2d 357, 359 (1970), the court stated that “[t]o constitute ouster there must be some express, open and unequivocal denial of the right to possession of the cotenant . . . .” (Cited by Morga v. Friedlander, 140 Ariz. 206, 208, 680 P.2d 1267, 1269, (Ariz. Ct. App. Apr. 19, 1984).)

The court in Young v. Young, 37 Md.App. 211, 376 A.2d 1151 (1977), stated it slightly different: “Ouster has been defined as a notorious and unequivocal act by which one co-tenant deprives another of the right to the common and equal possession and enjoyment of the property.” (Also cited by Morga v. Friedlander, 140 Ariz. 206, 208, 680 P.2d 1267, 1269, (Ariz. Ct. App. Apr. 19, 1984).)

In plain English.

In other words, if you and your siblings inherit property, and you move into the house and don’t let the siblings have equal use to the property, you can be liable for rent for the time that you had use of the house.

Contribution.

A co-tenant’s right of contribution does not exist when the cotenant had exclusive possession and enjoyment of the property. See 20 Am. Jur. 2d Cotenancy & Joint Ownership § 66; see also In re Marriage of Maxfield, 47 Wn. App. 699, 737 P.2d 671, 676 (Wash. App. 1987). The right to compensation for improvements made on jointly owned property without the consent of the cotenants may be awarded when the improvements: “(1) are made in good faith; (2) are of necessary and substantial nature; (3) materially enhance the value of the property; and (4) are such that circumstances show it would be equitable to do so.” 20 Am. Jur. 2d Cotenancy & Joint Ownership § 69; see also 59A Am. Jur. 2d Partition § 171 (courts may award a cotenant who makes improvements the resulting increase in value of the property, but not the cost of improvements).

In plain English.

If you and your siblings inherit property, and you move into the house and don’t let the siblings have equal use to the property, but you spend a bunch of money fixing the place up, you can’t expect your siblings to chip in to pay for the improvements.

Attorney Fees and Costs.

The common fund doctrine provides that a person who employs “attorneys for the preservation of a common fund may be entitled to have their attorney’s fees paid out of that fund.” LaBombard v. Samaritan Health Sys., 195 Ariz. 543, 548, ¶ 22, 991 P.2d 246, 251 (App. 1998).  The doctrine (1) ensures fairness to the successful litigant, whose recovery may be consumed by the expenses of litigation; (2) prevents the unjust enrichment of others who benefit in the fund and should share the burden of recovery; and (3) encourages the attorney to diligently litigate a claim by ensuring payment of his or her fees. Id. at 549, ¶ 22, 991 P.2d at 252. Because the common fund doctrine is a rule of equity, however, it will not be applied if a statute precludes apportionment of attorneys’ fees. Id. (Cited in State ex rel. Raber v. Wang, 230 Ariz. 476, 477-478, 286 P.3d 1085, 1086-1087 (Ariz. Ct. App. Sept. 6, 2012).

In plan English.

If the situation would not get resolved without your taking the initiative to hire a lawyer, at least some of the legal fees can be paid off the top so you aren’t stuck paying them out of your share.

Conclusion.

This has been a very brief introduction to the subject of partition. Don’t rely on this article as legal advice. If you have a question, give us a call at 602-443-4888 or contact us here. We have handled numerous Partition by Sale cases, and have a consistently favorable track record.

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Do I Need a Lawyer for an Informal Probate?

After a loved one dies, one of the tasks is administering your loved one’s estate. You want to make a smart decision and not give everything to lawyers or the government. I understand. But, here’s the thing. Sometimes you can do it just fine without a lawyer. But sometimes things go wrong. And it’s hard for you (as a non-attorney) to know ahead of time whether you need a lawyer. In asking “Do I need a lawyer for an informal probate?”, consider the case of the Estate of Rogers, which was decided in 2013.

The short version of that case is as follows:

On June 22, 2006, Marion Rogers (Decedent) passed away. He was survived by a husband, Dolores Rogers (Dolores), and three children: Nancy, Gary, and Candace. In September, 2007, Gary filed an application to appoint himself personal representative of the estate and to probate the estate through intestate proceedings. He did this without using a lawyer. Nancy, Candace and Dolores all waived their rights to apply as personal representative and consented to the appointment of Gary. On February 12, 2010 Gary filed a closing statement seeking to close the probate estate. Nancy then filed an Objection and requested a hearing. Nancy also filed a Petition for Removal and Surcharge of Gary as personal representative. A hearing was held in September 2011, and the probate court heard testimony from Nancy, Candace, Gary, and Nancy’s husband.

Note: What could have taken one year and not involved the courts has now blown up. Five years later after their loved one’s death, the family is fighting in court. The trial court eventually dismissed Nancy’s Petition for Removal and Surcharge of the personal representative. And that was eventually upheld by the appellate court. But that’s not the issue. This family spent lots of money on lawyers to fight over the administration of this estate. In hindsight, it would have been much better for them to spend $8,000 $10,000 to have a lawyer handle the estate administration for them. (And that’s probably a high estimate for a really simple probate.)

Moral of the story: Get a lawyer to help you.

At Magellan Law, we have perfected the administration of informal probates. We’ll make sure your loved one’s estate gets processed quickly, efficiently, and correctly … so you can sleep at night knowing that you won’t become like the story above and get served with a lawsuit 5 years after your loved one’s death.

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Document preparation company for a probate?

Document preparers promise to do cheap divorces, bankruptcies … and probates. Is this a good idea? Should you use a document preparation company for a probate?

The short answer is NO (for most situations). I’ve been practicing law for 15 years now. I believe a document preparer could work if you have a very basic situation. Basic situations might be:

  • The deceased person left a valid will that an attorney prepared, and there is only one person in that will who is entitled to everything (and that same person is also named as the Personal Representative).
  • The person died without a will, and there is only one person entitled to everything. For example, the person died with no children and there is a surviving spouse.

Otherwise, I think it’s a recipe for mistakes and a family fight if you attempt to use a document preparation company. Here are some common disasters that can happen:

  1. The document preparer will suggest that everyone sign a Waiver of Bond. Bond is a form of insurance that protects against the Personal Representative stealing assets or mismanaging the estate. It’s surprisingly common for a Personal Rep to not act fairly. Bond protects the other family members from misbehavior by the Personal Representative.
  2. The document preparation company won’t check the Will for ambiguities or read the Will to see if what it says makes sense. If the estate gets distributed contrary to what the Will says, the Personal Rep could be on the hook personally for the mistake.
  3. Creditor claims can be complicated. For example, when should you deny a creditor claim?
  4. If you have a statement from a creditor (like a hospital or ambulance bill), and you send that company a Notice to Creditors, does the creditor need to send you another statement (like the Notice to Creditors says)? If you fail to deny a claim within a certain period of time, it is considered allowed and the estate need to pay it.
  5. The document preparation company won’t think through other issues. For example, how to transfer the property. A Will might way that Personal Representative should transfer the house to the deceased parent’s four kids. But that could turn into a fiasco if the kids can’t agree on what to do with the property. It would be better to have an attorney work with the family. The lawyer will fix such a situation before it turns into a problem.
  6. If a step mom or step dad is involved, you need a lawyer. There will almost certainly be conflict over division of the personal property. What if the step parent refuses to divide any of the deceased parent’s belongings with the children. It’s best to have a lawyer involved for such cases.

These are just some common situations that came to me when writing this. Just remember this: If the probate situation is really, really simple, a document preparer could handle it for you. But most cases these days are more complicated. Especially if you’re dealing with a blended family or multiple brothers or sisters.

If you have any questions, give us a call at 602-443-4888. We promise to talk straight with you. If you don’t need an attorney, we’ll let you know.