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Irwin Law
Irwin Law, Lawyer
Category: Real Estate Law
Satisfied Customers: 6849
Experience:  Lawyer- Broker 30+years - foreclosure, short sale, liens, title attorney.
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My husband's mother died 2 years ago. she lived in. s nephew

Customer Question

my husband's mother died 2 years ago. she lived in virginia. his nephew (her grandson) lived in the apartment above the garage when she died and was allowed to continue to rent the apartment while the estate was being settled. there will be an estate auction on oct 24 which includes the sale of the house. he has known all along the date of the auction. the nephew has been upset that the house is being sold. today was a preview for personal property that is being sold online (this did not involve the apartment at all) the auctioneer called and stated the nephew came to the house and "got in his face" and informed him that no one would be allowed in the apartment to view prior to or on the day of the auction. he has been given the proper notice-24 hrs prior to each event. he stated he would not allow anyone in and would "get a warrant for breaking and entering" what are our options? we are afraid he will come to the auction and cause problems. the auctioneer stated he is going to hire security in the form of off duty officers from the local sheriff's office. is there any way we can keep him off the premises the day of the auction? especially since his apartment is there. we have a very threatening profanity laced text he sent my husband tonight. Help!
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Irwin Law replied 1 year ago.

We provide information on legal topics. Do you have a question about this situation from the legal standpoint?

Customer: replied 1 year ago.
Specifically:
It is my understanding that a tenant must allow access to a property when the landlord is trying to sell the property. We have given him official 24 hr notice that we need access to his apartment on Sat Oct 17 from 9:00 - 1:00 to show the apartment. He has responded via text that no one is showing, viewing or invading his personal space and if we enter without his consent he will swear out a warrant for breaking and entering. Are we allowed to enter the apartment without his consent?Also, since he lives on the premises (in the apartment above the garage) are there any papers we can serve that will keep him off the property on the day of the auction?
Expert:  Irwin Law replied 1 year ago.

Are we allowed to enter the apartment without his consent? is there any way we can keep him off the premises the day of the auction? especially since his apartment is there.

The answer to both of these questions is: Probably not. This clever young man has obviously spoken with an attorney. He has been advised about the legal doctrine of "quiet enjoyment" which gives a tenant superior right to possession over the landlord/owner. I'm afraid that he has you in a bit of a box on this point . The attorney who is handling the estate will most likely proceed with a formal eviction against this tenant and as soon as he is formally removed from the property then the sale activity can resume. Until that point, you can show the house if it is separate from the garage, but not the garage that he currently rents. It sounds as if he is a month-to-month tenant, and will have to be given 30 days notice to move out. At this time this seems to be the law in most jurisdictions. I'm sorry that I have to be the bearer of negative information. But to say otherwise would be to mislead you, which we are not going to do at JUST ANSWER.

Expert:  Irwin Law replied 1 year ago.

I hope that you will now enter a positive rating.

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