Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.
may I ask how the lodger came to occupy the property please? in particular, what relationship does the lodger have to your father?
why is one of the executors reluctant to evict the lodger? Is this some form of relationship between your brother and the lodger - e.g. friends or relations?
Has the lodger ever paid rent?
The lodger moved in many years ago when he was allegedly having an affair with my mother, mother died 15 years ago and he refused to leave. There is no relationship with my father.
It is believed my younger brother may be his child, my father was unaware of this. The lodger paid a share of the bills until 18 months ago.
thank you. Finally, did your father live in this house with the lodger? you mentioned that the Boettcher contributed towards some bills sometime ago. Is it clear that he was contributing towards bills rather than paying rent from the evidence that is available in this respect?
Yes my father lived at the property throughout his lifetime. Only evidence of monies paid is a cheque banked by my father at periodic intervals.
thank you. based on what you say, I agree your assessment that the individual is a lodger rather than a tenant and his status would appear to be that of an excluded occupier. as such, he only has the right of reasonable notice in order to move out. what is reasonable is not defined in the legislation but should be reasonable in all the circumstances and in any event it should not be less than 28 days so as not to fall foul of the protection against eviction act
executors have authority to act jointly and independently by virtue of of the administration of the estates Act. accordingly, one executor can proceed without the agreement of the others however, similarly, another executor can then countermand an executor so there is a risk that the matter could descend into tit for tat getting nowhere.
however, as beneficiaries, you and your sibling that does agree that the individual should leave can serve a notice on the dissenting sibling advising that you will be seeking occupational rent from the occupant immediately until he leaves the property and if he is not prepared to support your decisions in this respect, then you give them notice that he will not be entitled to claim his one third share of occupational rent.
occupational rent can be claimed from the occupant based on a market rent for the property whereby you would be entitled to one third of the same. If the dissenting executor or is not prepared to charge such rent, then a two thirds market rent demand can be applied whereby the dissenting executor or forfeits his right to the same
Thank you, XXXXX XXXXX this could mean some movement forward
if the dissenting executor enters into tit for tat countermanding of your instructions, then you and your brother may need to consider seeking an application to the court to remove him as an executor and claim costs against him as all three of you will need to sign to ultimately sell the property.
Sadly the proposed sale of the property is also a bone for contention.
your brother should understand his role as executor. His role is look after the interests of all of the beneficiaries by preserving the assets of the estate and ensuring efficient administration of the same so as to pass those assets onto the beneficiaries under the terms of your father's will. If any of the executors act in a manner contrary to the interests of the beneficiaries, then the beneficiaries which of course includes you and your other brother from what you say can consider an application under section 50 administration of justice act 1985 to remove your problematic brother. In addition, if that brother causes loss to the estate, a further claim against his share can be considered by you and your other brother for such loss.
Hopefully such a position could be avoided because litigation is certainly not something that should be rushed towards however if discussions or negotiations fail, you may wish to consider giving your brother notice in the above terms. Ultimately that brother has but two options if you want your share in the property: to provide that the property is sold or buy out you and your brothers shares at market value from his own resources
Are you familiar with the form of notice to give to the lodger notwithstanding the above?
Thank you, XXXXX XXXXX sure I will be back as you have given me some positive ways forward. The dissenting brother lives in Dubai and is happy to take the court route and allow any inheritance to go in legal fees. I am sure I can find the relevant form of notice to give to the lodger.
No problem. If you would like any assistance with the notice, please do not hesitate to contact me.
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