Oftentimes, parents leave the family residence as their only asset in the estate for their children. The situation becomes complicated when a sibling (a brother, for example) refuses to leave the deceased parent’s house after the parent dies. Usually, this brother is the one who cared for the parent. What do you do when your brother refuses to leave the deceased parent’s house?
There are three possible scenarios:
- The brother is the executor and refuses to leave the deceased parent’s house.
- The brother is not the executor or administrator and refuses to leave the deceased parent’s house.
- The house has already been transferred by the estate to the siblings and your brother is a co-owner who refuses to leave the deceased parent’s house.
Brother is an executor who refuses to leave the deceased parent’s house
If your brother has been appointed as executor and refuses to leave the deceased parent’s house, you can either petition to have your brother removed as executor for wasting estate assets or petition to compel her to sell your deceased parent’s house.
Brother is not executor and refuses to leave the deceased parent’s house
If your brother is not the executor and refuses to leave the deceased parent’s house, there are two possible situations:
- there is no executor or administrator and your brother refuses to leave your deceased parent’s house, or
- there is an executor or administrator but has not acted in evicting your brother from your deceased parent’s house.
If the first situation, you need to have yourself appointed by the court as executor or administrator before you can file eviction proceedings against your brother.
In the second situation, you should talk to your executor or administrator to have your brother evicted.
In both cases, you need to make demand for your brother to pay rent first. An eviction notice for nonpayment of rent is required before a landlord can file an eviction lawsuit in New York courts.
House has been transferred to siblings, brother is co-owner who refuses to leave the deceased parent’s house
When your deceased parent’s house has already been transferred to the siblings by the estate, your brother is now considered a co-owner of the property as a tenant-in-common. In this case, you cannot file eviction proceedings against your brother anymore. Under New York law, a co-owner (called a tenant-in-common) is entitled to the possession and use of the property (such as living in the property) without paying any rent to the other co-owners.
Your only remedy, in this case, is to file a partition action. When co-owners fail to agree on what to do with the property, one co-owner may file a lawsuit for partition, either to physically divide the property (if possible) or to sell the property and distribute the proceeds to the co-owners in accordance with their equity interests. Most co-owners, however, prefer a partition sale to a physical division of property.
Since New York’s adoption of the Uniform Partition of Heirs Property Act (UPHPA), effective December 6, 2019, inherited property (or “heirs property” as it is called in UPHPA) owned under tenancy-in-common now goes through a different process before a partition sale. This is to prevent the sale of inherited property by real estate investors in an auction at prices below fair market value. UPHPA requires the co-owners to bargain in good faith regarding the sale of the property in a mediation conference. If this fails, the court is required to make a valuation of the inherited property in an evidentiary hearing. Based on this value, the property is offered to the defendant co-owners, who are given the right to purchase the share of the co-owner seeking partition. If the defendants do not exercise this right, property may be sold in the open market (and not in auction) at fair market value.
Because the UPHPA is a relatively new law adopted in December 2019 and an intervening pandemic occurred in 2020 to 2021 which tolled sales in New York City, courts have not had the chance to interpret the UPHPA’s provisions. However, in 2nd Ave Holding 1 LLC v. Lowenbraun, 2021 NY Slip Op 31276(U)(Sup Ct, NY County 2021)(Supp. Decision and Order on Motion), a real estate investor purchased a co-owner’s 1/6 share and tried to force a partition sale by the court. The court, however, ordered the plaintiff to show cause why the property should not be considered heirs property. After making a determination that it was heirs property under UPHPA, one major contentious issue was the determination of fair market value by the court and at which point in time should fair market value be determined (whether it is from the date the lawsuit for partition was filed or the date the court ordered an appraisal of the property). In that case, the court declared that it had broad discretion to decide the date on which fair market value would be determined. In the end, the court averaged the values of the three appraisers (the court’s appraiser, the plaintiff’s appraiser, and the defendants’ appraiser) to arrive at the fair market value, upon which the defendants would be given the right of first refusal to purchase the share of the co-owner.
If you have a brother who refuses to leave the deceased parent’s property, you need to consult with a lawyer to discuss your remedies. Should you need assistance, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at firstname.lastname@example.org.