Legal advice with Karen Walsh: The rights of joint property owners

Dear Karen,

My father died five years ago, and left myself and my two siblings his house, in his will.

My brother has lived in the house for the past five years.

Now, my sister wants to sell.

Can she force him out?

Can she force a sale?

Dear Reader,

On the face of it, it is a simple matter of asking your brother to leave, selling the house, and dividing the net proceeds between your siblings.

In practice, it is very far from simple, and often consumes a lot of emotion, time, and expense.

As one of the joint owners of the property, your brother who is living in the house has the right to occupy it, as do you and your sister.

Your brother cannot be forced to leave the house unless a court grants an order forcing him to vacate. This is unlikely to be granted for the reason that it is intended, to sell the house.

Usually, a court order removing someone from the property usually involves someone being violent, abusive or physically aggressive to another occupant.

Your sister, who wants to sell, does not have the right to sell the entire property without the consent of the other owners, or a court order forcing the sale of the property.

She does have a right to sell her share as a tenant in common without your consent, but she would find it very difficult to sell her share in the house to a third party, not too many people would be interested.

She could offer to sell her share to you or your brother.

She can also apply to court for an order forcing the sale of the property. She would first have to write to you and your brother setting out her wish to sell and her case, and provide you with the opportunity to set out your case.

Perhaps your brother could obtain finance to buy the house in full from you and your sister. Or, if your brother doesn’t have access to finance, perhaps he could reach a private arrangement, whereby your brother buys the house from you and your sister over a period of time.

It is unlikely your brother will make himself and his family voluntarily homeless, especially if you and your sister are already housed.

Nor does he have to move without your sister having obtained a court order evicting him.

It is best to try and reach an agreement amicably, because if you fail to reach agreement, it will involve court action which may result in you and your siblings falling out and incurring additional legal expenses.

If a private agreement cannot be reached, it would be wise for each party to get independent legal advice and to see if the matter can be resolved amicably or by mediation.

Litigation should always be the last resort, especially when it involves family.

Karen Walsh, from a farming background, is a solicitor practicing in Walsh & Partners, Solicitors, 17, South Mall, Cork (021-4270200), and author of ‘Farming and the Law’. Walsh & Partners also specialises in personal injury claims, conveyancing, probate and family law.- Email: [e-mail]- Web: www.walshandpartners.ie

While every care is taken to ensure accuracy of information contained in this article, solicitor Karen Walsh does not accept responsibility for errors or omissions howsoever arising, and you should seek legal advice in relation to your particular circumstances at the earliest possible time.