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CalAttorney2, Attorney
Category: Legal
Satisfied Customers: 10215
Experience:  Civil litigation attorney for individuals and businesses.
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Rental income property. My sis's new spouse is of

Customer Question

Rental income property. My sis's new spouse is of questionable character and a bully. They are wanting to move into the 2 fam property my parents gave to me and my sis to manage for their retirment. My sis is in and out of detoxtype hospitals. Do i have to accept this arrangement and how do i stop this because her spouse is a bully so far and things went down hill since he appeared. I prefer they live in a separate apt for a while to sort their issues. THe property was suppose to provide rental income for my elder folks retirment and if they move into this property, there will be no rental income . It is a 2 fam home.

Submitted: 4 months ago.
Category: Legal
Expert:  CalAttorney2 replied 4 months ago.

Dear Customer,

Your sister is in "breach of fiduciary duty" to your parents - but your parents are the ones that must bring the cause of action (not you).

If she is supposed to be managing the property to develop income for your parents, but is instead using it for her personal residence (without paying anything for it, or at least fair market value), she is failing to perform her functions ("fiduciary duties") as required.

If you hold a Power of Attorney, or conservatorship for one or both of your parents, you can retain an attorney to prosecute this claim on their behalf.

Customer: replied 4 months ago.

If they want to pay rent, can i refuse as well?

Expert:  CalAttorney2 replied 4 months ago.

If they are paying rent at a market rate they can be evaluated on the same terms as other potential tenants (past rental history, income to rent ratio, and security deposit), but if you are managing the property with them as co-managers, then she would have input into this.

(Your relationship to your parents for purposes of managing this property really should be more formal to help avoid confusions and issues of this type - a Power of Attorney, or a Trust would be an appropriate mechanism to allow one or both of you to manage the property, either at the same time or sequentially (if one is unable to execute their duties, the other can substitute as a successor)).

Customer: replied 4 months ago.

would her husband be the person i have to deal with if she is incapacitated or not interested?

Expert:  CalAttorney2 replied 4 months ago.

You need to work with your parents to make those formal arrangements as to who actually has the legal authority to manage the property.

Once you identify who has the holds this authority you can address the tenants/occupants (so this would be both your sister and her husband).

If your sister has a power of attorney, it does not transfer to her husband (absent something in the power of attorney itself).

Customer: replied 4 months ago.

The house was gifted to us tho. They have other ideas. They want to sell the house or move into it. My parent wants to rescind or revoke his gift.

Expert:  CalAttorney2 replied 4 months ago.

Your parents cannot revoke a gift without both parties' agreement. Once it is given, it is transferred.

However, if one or both of you insists on selling it, you can do this by forcing a "partition by sale" in which the court requires the property to be sold and the income divided between the two owners.

This is not a very efficient way to divide a real property ownership.

Short of filing a lawsuit, you can try to mediate the dispute with them - contact your local bar association and request referrals to mediators, a third party neutral can often help you reach a mutually agreeable resolution. Use the bar association's referrals to contact a mediator or two, the mediator will then contact the other party to set up a mediation session, and you can go from there - hopefully resulting in a formal or written settlement agreement, and save yourself the time and expense of litigation.

Customer: replied 4 months ago.
the spouse will potentially have to step in if my sister is mentally up and down. What happens if there's questions regarding her inability to notice the bullying but there's clear evidence that supports the questionable actions of the spouse should it ever get to court? Would the character of the spouse be acknowledged in mediation?
Expert:  CalAttorney2 replied 4 months ago.

Dear Customer,

I am not sure what your co-owner's spouse's conduct would have to do with an actual partition by sale action.

However, if you wanted to mediate a dispute that involved your family and the financial/property matters that you are dealing with, then you can deal with that in the course and scope of a mediation, but that is not at issue for a property dissolution suit.

Customer: replied 4 months ago.

The parent has a lifetime estate tho.

Expert:  CalAttorney2 replied 4 months ago.

It is possible to do a partition action even with a life estate, but it is not very effective.

This type of dispute really is best resolved with negotiations or mediation. A good mediator should be able to help you at least come closer to a "mutually agreeable resolution" (perhaps at least for the short term).

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