It is a common and unfortunate aggravation in Estate cases for a family member to try and remain permanently in a home that must be sold after the death of the mother or father.
Usually the family member is a child, and they may have lived in the home for a long time prior to the death of their mother or father. Often they feel entitled to remain in the home.
But other family members, usually brothers and sisters, have a right now to share in the value of the home, usually because they are beneficiaries of a will or a trust that calls for the property to be distributed among the surviving children. If their sibling wants to stay in the home, she or he could buy them out for their share of the fair market value of the home. But the problem arises when the sibling chooses to ignore the interests of the rest of the family, cuts off communication and goes dark. Now she or he is essentially a squatter in the home.
At this point it will impossible to sell the home with someone living in it who will not get out. The situation is compounded when the sibling squatting in the home is a trustee of a trust that owns the home, or an executor of the estate of the deceased parent. Not only is someone squatting in the home, but it also cannot be sold without their signature on a contract of sale.
None of the foregoing, however, stops family members from their right and ability to remove their sibling as executor or trustee. Nothing prevents them from being able to forcing them out of the house if necessary. A short hand notation for these cases can be said to be “buy out, get out, or kick out”.
Creedon & Gill has been involved in many cases of this sort. Attorney Peter J. Creedon recently prevailed in such a case in the Supreme Court of Nassau County. We represented a trustee, sister (a co-trustee) tried to continue living in the home owned by the Trust after their mother had died, Creedon & Gill argued that a trustee who frustrates the obligation of the trust to sell a home is violating their fiduciary duty as a trustee. The Judge agreed and ordered the offending sibling removed as a trustee. Creedon & Gill argued that someone who continues to live in a home without the right to do so in a situation where the home has to be sold, has to get out. The Judge agreed and ordered a Judgment of Possession and Warrant of Eviction for he Sheriff will execute on.
Ultimately an actual eviction is rare. In the end in most case like this we have handled, once the Sheriff slaps the Notice of Eviction on the door of the home, the offending sibling suddenly wakes up and comes to the table and buys out or gets out.
The Court was referred to the case of In Matter of Brower No. 2010-362611 (N.Y. Surr. Ct. 2011)
Brower concerned a case where it was necessary for a Trustee to evict a Trust beneficiary from a home held in Trust to accomplish the home’s sale. As the Court wrote,
The trustee of a lifetime trust charged with selling the real property of the trust has a cause of action for the eviction of a person in possession of the property, even if that person is a beneficiary of the trust (EPTL 11-1.1 [b] [5] [A], [B]; Matter of Wellings, NYLJ, Apr. 26, 1989 at 26, col 6 [Sur Ct, Suffolk County]). [The Trustee] would be violating his obligation to the trust and its beneficiaries if he were to permit [The Squatting Sibling] to frustrate his attempts to sell the trust property by refusing to vacate the premises so that it can be readied for sale.
Accordingly, the petition is granted to the extent that an order may be entered granting possession of the subject property to the petitioner and the issuance of a warrant of eviction for the removal of Maynard Brower from the subject premises. The prayer for the imposition of back rent will require a hearing to determine the fair market rental value of the property. This matter will appear on the court’s calendar for conference on April 6, 2011 at 9:30 a.m. to schedule the hearing.
The Court was also referred to the case of Hadar v. Pierce 974 N.Y.S.2d 399 (N.Y. App. Div. 2013) for the proposition that because the sale of the home required the approval of who ever is an active Trustee of the Trust, the squatting sibling obstinate opposition to cooperating in sale of the home provided grounds for her removal as a Trustee.
If you are confronted with a situation like the one we are considering here, where someone won’t get out, won’t buy out and will probably need to be kicked out, Creedon & Gill can help you.