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LegalGems
LegalGems, Attorney
Category: Estate Law
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Experience:  Private Practice; Elder Law Attorney; Estate Planning; Attorney Mentor
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I am pro se on an oral argument requested by Supreme Court

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I am pro se on an oral argument requested by Supreme Court for petition filed for judicial intervention on the sale of my parent's home inherited by my brother and I. He went into contract with me to buy me out, after he received the mortgage committment letter, he called me to say he didnt want to buy me out and that we should sell via real estate. I felt he breached contract with me, but since I needed this money, desperate I agreed to contract with him and a broker of his choice. Since then he declined 4 offers on the house. I want to prove to the court, he is impeding the sale of home, he is intentionally inflicting emotional distress with what he says and does so i give up and he refuses me access to the home because he lives there and wants his privacy but doesnt pay the taxes, I do. What case law can i use to pursaude the court that a court order is needed to sell this house and I am entitled for restitution for tormenting me for almost two years with this house, I am also the Executor of my parent's will. Please help me.
Submitted: 1 year ago.
Category: Estate Law
Expert:  LegalGems replied 1 year ago.

LegalGems :

Hello; Thank you for your patience. This was a more difficult case to find. I found a case for NY that deals with real property sales in surrogate court. Please see: http://decisions.courts.state.ny.us/ad3/Decisions/2007/501217.pdf.

LegalGems :

If your brother is failing to pay fair rental value that will be a factor most courts consider, as the property is supposed to be used in a financially responsible manner; a tenant living rent free only costs the estate more money.

Customer:

yes, but the probate attorney told me he doesnt have to pay rent because he is considered half owner...as our parents willed the home to both of us. he has refused me access as Executor and half owner...he only pays for the utility because he lives there..i have been paying the taxes because i dont want a lien on the home. The case will be heard in Supreme court. the case you found was in surrogate court...will that be a problem?

Customer:

i do appreciate your help. I need to win this case pro se

LegalGems :

But you are also half owner; so his argument is not very convincing. Generally if someone is half owner, they will pay the other owner 50% of the fair rental value.

LegalGems :

Yes, surrogate court cases are still effective. Let me see if I can find a supreme court case.

Customer:

ok that is good to know. In an oral argument, i read i need to cite case law to support my argument. the case you provided me with ...will do?

LegalGems :

It will help. The court will consider cases cited and summarized by each party. They will even consider (but aren't required to) cases from other jurisdictions. One moment please as I'm reviewing some other case law.

Customer:

thank you...i will be here waiting to see if you can find a supreme court case to support my petition. I am also asking for restitution since he has been playing with me for almost 2 yrs.

LegalGems :

They may order back rent, if it was asked for in the original filing.

Customer:

i asked to court to award me the original buy out amount he contracted with me to purchase my share. That is breach of contract? but i was told since he did not give me a down payment that contract was not valid...i felt if that was so, then why did we sign?

LegalGems :

Generally a contract needs consideration in order to be binding. The court may have determined that there was no consideration - or that other elements of a binding contract were not met. But that really is a real estate issue, versus estate law, so I would not be able to provide too much guidance on that. The issue here though is that the house needs to be sold; and you are trying to get permission to do so.

Customer:

correct

Customer:

? wouldnt the mortgage committment letter he received be the consideration? bc it states in our contract that if no mortgage committment was obtained...contract would be voided.

LegalGems :

Consideration is something given, of value. I'm thinking that perhaps they voided it because there was no down payment, and generally that is considered the damages in the event of breach. But for real estate you can also sue for specific performance. Did the court not make clear the reason for its ruling?

Customer:

I havent been to court yet...the lawyer who had drawn the contract for sale told me that...i was upset because he knew my brother was doing things underhandedly.

Customer:

so he was able to back out of the contract with no consequences according to the lawyer who made that contract

Customer:

i am going to court Aug 1st...that was the decision i received in the mail after i filed the petition w supreme court...but the clerk told me the judge usually sends his decision in the mail. i was surprised that the judge ordered an oral argument...i submitted all the exhibits to show that my brother was impeding on the sale of this home and that i was paying the taxes

LegalGems :

Generally consideration is a person changing their legal position. So I'm really not clear as to why this contract is not valid. profj.us/outlines/ch11.doc

Customer:

i see

LegalGems :

If an attorney that is not YOUR attorney advised you of this, I would suggest that you bring the contract to an attorney that is solely representing your interests.

Customer:

that link you provided is giving me a problem...not coming up

Customer:

sorry it is a document that downloaded

LegalGems :

No problem.

LegalGems :

I am not having any luck finding a case on point in the Supreme Court.

LegalGems :

Here is a NY free service that may be able to assist: http://nylag.org/get-help/ as they may have a more comprehensive database than mine.

Customer:

alright then...any other advise on how to make the opening statement persuavsive?

LegalGems :

Just a second please; I'm reviewing a couple more cases.

Customer:

much appreciated

Customer:

why did you step out? You asked for me to wait as you were reviewing a couple more cases...so I am here.

LegalGems :

I am so sorry. I spent quite some time trying to get back to you; apparently my last comments did not post, and the site would not let me view our chat. It had you down as disconnected. Let me try and find the information I had posted. If I recall correctly, you also asked about persuasive opening arguments. I stated that it is ideal to have all relevant facts tied to the legal point you are arguing, all relevant main facts, saving the less trivial for the remainder of the hearing. It is generally best to have an independent person review what you consider relevant facts, since they are emotionally uninvolved so it is easier for them to determine if a third party would consider a fact relevant. I also suggested UTubing oral arguments so you can get a sample. I will try and find that information - one moment please. Again, my apologies.

Customer:

ok i m here

LegalGems :

So sorry! I found a case in the NY Law Journal. I was suggesting (how frustrating that the end of our chat is now missing - I will notify the site once I'm done assisting you) that you go to a law library as the NY Law Journal requires a subscription - but it is free at law libraries. There is a case for June, 2013, that involved an executor requesting permission to sell real property. I could not view the actual case so couldn't comment on that. Then, I was unable to find other cases on point. I forgot to mention, but previously I suggested that you prepare your opening statement and see if the free legal aid clinic will review it for you to give you any pointers.

Customer:

Since then he declined 4 offers on the house. I want to prove to the court, he is impeding the sale of home, he is intentionally inflicting emotional distress with what he says and does so i give up and he refuses me access to the home because he lives there and wants his privacy but doesnt pay the taxes, I do. What case law can i use to pursaude the court that a court order is needed to sell this house and I am entitled for restitution for tormenting me for almost two years with this house, I am also the Executor of my parent's will. Please help me.

LegalGems :

Application of Saada Roberts for the estate of BAHIA MEHMET BIN is the case plaintiff.

LegalGems :

It looks like we cross posted; were you able to review my 8:05 post?

Customer:

I don't see the case of Saada Roberts can u repost it?

LegalGems :

To access it you need to have a subscription to the NY Law Journal, as it has not yet been published. The local law library near you should have this publication.

Customer:

i see...so then i will go to the law library thank you

Customer:

I thought you would be able to review my facts that i reposted to let me know if my facts are relevant to opening statement which i mention in my question.

LegalGems :

We really can't give specific legal advice as that is against the terms of the site (that requires an attorney client relationship). However, any evidence that you have that would prove that he is impeding the sale (such as refusing access to potential buyers; not properly caring for the home; not paying fair rental value in the interim, etc) would bolster the request.

Customer:

ok thank you. Is refusing offers from buyers consider impeding a sale?

LegalGems :

It can be. It would depend on the reasonableness of the offer. If it is at/near the appraised value, that would generally be construed as unreasonable.

Customer:

ok makes sense

LegalGems :

Yes. Most of the facts will be rather logical to determine their importance. But again, always a good idea to run by a third party, just because it's easier for someone else to see the forest from the trees.

Customer:

thank you

LegalGems :

You are welcome! Glad to have helped - sorry for the tech issues - and good luck in court!

Customer:

Thank you

LegalGems :

Thanks. Take care!

Customer:

bye

LegalGems, Attorney
Category: Estate Law
Satisfied Customers: 3717
Experience: Private Practice; Elder Law Attorney; Estate Planning; Attorney Mentor
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