‘Loose arrangement’ comes back to haunt sisters

My mother died in December 2006, my father died in October 2007. My father had made a will leaving everything to my mother, but as she predeceased him he died intestate.

We had the family solicitor take on the probate and my sister as administrator of their estate. The family home was the main asset. Myself and my sister had moved out, married and bought our own houses. My only brother had lived there when my parents died and continued to live there.

The loose arrangement agreed was when the house was sold my brother would receive an extra €36,000 as there was a small sum of money released to myself and my sister. There wasn’t a timeframe put. We have tried in vain to encourage him to move on. He’s there on his own and the house is in a total state of disrepair as he has not maintained it.

Myself and my sister want the house sold but he is refusing to budge. We need the house sold but it seems to be a huge cost involved if we employ a solicitor or barrister.
Ms AK

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The words that really concerned me when I first read your question are: “loose arrangement”. When it comes to matters of law, or tax, loose arrangements are a nightmare.

Unfortunately, they are all too common in family agreements – typically with inheritance, or inter-family financial loans, to fund home purchase for instance, or tide a sibling over a financial crisis. That is why I have consistently advised that such a arrangements should be put in writing and signed by all parties. Even in the absence of a lawyer, that gives some evidence of the terms of the arrangement.

All of which is little good to you at this point. In the absence of documentation, any disagreement has the potential to be drawn out and require recourse to the courts.

This house was inherited under intestacy, as your father’s will leaving everything to your mother was no longer enforceable, given her death prior to him. Most solicitors will advise that anyone writing a will makes provision for this by leaving their estate to their spouse – if that’s what they want – but providing specific instructions on how the estate is to be divided if their preferred inheritor predeceases them.

Under intestacy, as the only three children, you would each have inherited a third of the property and, if depending on that value, have paid inheritance tax on that.

The clean arrangement would have been to sell the house, divide the money and let everyone do what they will thereafter. Having failed to do that, and without any formalised arrangement between you, I see no alternative in this case but for you and your sister to engage a solicitor and move to force your brother to agree to a sale and his vacation of the property.

Hopefully, the legal pressure alone will secure agreement. But, if not, unfortunately you do face the added cost, stress and time involved in going through the courts.

And you need to move quickly on this. I note from your letter that your father died in October 2007. This not far short of 11 years ago. There is the possibility of your brother claiming squatter's rights, known in legal parlance as "adverse possession", if he has occupied the property as an owner, unhindered, for more than 12 years – ie October 2019, which is not that far away at all.

Now adverse possession is a tricky thing – and there is no guarantee that your brother could claim it. It depends on the circumstances of his occupation of the property and the access you and your sister have had in that time. Even things like you having keys and entering the house as "owner" would be relevant.

But the bigger issue is that, if he were to try to claim adverse possession – which he can do by registering title in his name after the 12-year period has elapsed – it would inevitably involve substantial legal costs with no certainty of you and your sister ultimately getting any share of the property. I can see the euro signs lit up on the legal tills from here.

You refer in your letter to your sister’s legal background and whether this is something you could manage yourself, without going through a solicitor etc. Obviously, I don’t know what legal background your sister has but my instinct is no. This is not a straightforward issue and bumbling through it has the potential to make it worse – and to poison family relations more than may be strictly necessary to get it sorted.

There are two other issues here. First, you indicate that the house is falling into a state of neglect and disrepair. As co-owners, this is something you should have been acting on before now but you certainly cannot afford to ignore it now. The less it is maintained, the more you as a family are likely to have to invest before any sale if you are to realise its market value.

Secondly, and related, is that you tell me this is a large four-bed family home with a garden. While the market in 2007 was just about to crash, with few buyers in the market for such properties and prices considerably down on their peak, that has now changed. The market is rising, with family homes in particular demand from buyers, who have been bursting out of starter homes that were never designed for their growing families.

From your brother’s point of view, this might prove persuasive. Where, post-crash, the property might not have realised enough to allow him move on to another home more in keeping with his needs as a single occupier, a sale now might well provide sufficient financial heft to allow him to do so. Especially as there is provision for him to benefit disproportionately to the tune of €36,000 – in a split on the sale price achieved for the family home.

In any case, you have no choice here. You need to act now and formally. Your brother may have no ulterior motive in ignoring your gentle hints that he needs to move on, but you wouldn’t want to find out in a couple of years that you had presumed incorrectly.

• Please send your queries to Dominic Coyle, Q&A, The Irish Times, 24-28 Tara Street, Dublin 2, or email dcoyle@irishtimes.com. This column is a reader service and is not intended to replace professional advice