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James D. Ford
James D. Ford, Solicitor
Category: Australia Law
Satisfied Customers: 1601
Experience:  Consulting Principal at Nexus Law Group
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2 years ago my parents became ill and my sister and I

Customer Question

hello 2 years ago my parents became ill and my sister and I had to move into our parents house. they have since passed on. last August my sister brought her son to live at the house for a 2 month period. soon after I was bullied by both and had to leave. I have been renting for $300 a week. the sun left at Christmas. the house is now in both our names and I have been paying half the bills including rates and home improvements for sale of house. her son has returned to live at the house which I discovered on the day. I am having trouble making ends meet. Would I have a case to retrieve rent from these people? if so what is the coarse of action?
Submitted: 2 years ago.
Category: Australia Law
Expert:  Leon replied 2 years ago.
Good Afternoon, My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise Please understand this is not legal advise but a guide to assist you.You are unable to charge them rent but you can seek a court order to have the property sold and receive your 50% of the value of the house. In addition because they are getting the benefit of the outgoings that you are paying, you can also seek compensation for what you have paid. You should get a solicitor practices in employment law and have them write to your sister and advised that you wish the property sold and if she refuses to agree to place on the market that you will commence proceedings in the Supreme Court for sale.Whatever you wish to do, you will need a court order if she does not agree.I hope this makes sense and is of assistance. If there is nothing further thank you for using my services. If I have missed anything, or you have any further questions please let me know If there is anything else in the future please do not hesitate to ask. Please do not forget to leave positive feedback. RegardsLeon
Expert:  James D. Ford replied 2 years ago.
Hi, I disagree with the answer provided by Leon. REGARDING THE ABILITY TO CLAIM OCCUPATION RENTCopied from a summary of the laws related to co-ownership of PropertyRights of Occupation[1] All co-owners (whether joint tenants or tenants in common) have a right to possess and enjoy all of the property. This means:Actions of trespass cannot be brought against a co-owner unless he did something to prevent common enjoyment of the land or excluded the of the co-owner from possession.[2]Co-owners can invite others to come live on the premises.[3]Occupation Rent[4] The general rule is that a co-owner who has chose not to exercise his right of possession (ie, live on the property) cannot seek any compensation from the other co-owner. This is because of the principle of unity of possession - each co-owner has the right to occupy the entire property and they should never have to pay for that right.There are, however, two situations where the party in possession will owe an occupation fee to the part not in possession:If the co-owner was ousted by the other co-owner.This amounts to a denial of the of other co-owner's right to possession and thus the other co-owner can bring an action for trespass. The trespass is resolved by way of an occupation fee.If the parties have agreed on occupation rent.Sometimes, the parties might agree that one party will vacate the land in exchange for an occupation fee.If the co-owner in possession has made improvements to the land and wishes the co-owner not in possession to contribute.If party is making improvements, equity allows them to claim contribution ('allowance for improvement') because it would unjust for the non-occupying co-owner (who still owns the property) to benefit. However, the improving co-owner will then have a duty to pay an occupation fee in order to get that allowance (this is discussed more below).Ouster[5] 'Ousting' or 'ouster' refers to when a co-owner prevents the other co-owner from exercising their right to possess the entire property. An 'ousted party' may be claim occupation rent from the other co-owner. This was discussed in Biviano v Natoli:Ousting is 'an express denial of the title and the right to possession of fellow tenants, brought home to the latter openly and unequivocally'.However, the removal of a party from the premise in accordance with a statute will not constitute an ousting.As you have been bullied into moving out of the Property, this may constitute "ousting".. WHAT YOU NEED GOING FORWARD - IF YOU KEEP THE PROPERTY OR THE PROPERTY WILL TAKE OR DOES TAKE TIME TO IMPROVE AND SELL If you decide to continue to be a co-owner of the property, or it will take some time to finish the improvements and sell the property - you need a co-ownership agreement. Please let me know, if one is needed, and whether you would like me to provide a quote for legal services. A Co-ownership Agreement sets out everything in writing, providing for occupation rent (if it applies), how the income and expenses are to be shared, rates, maintenance, insurance, etc., what happened if one party doe snot pay their share, how decisions are to be made if parties disagree, provides a dispute resolution process, and what is to occur if one party decides they want to sell their half share, and many other things...I AGREE WITH LEON WITH REGARD TO COMPENSATION OR AN ACCOUNT TO YOU FROM THE PROCEEDS OF SALE WHERE YOU HAVE CONTRIBUTED MORE TOWARDS IMPROVEMENTS, EXPENSES ETC. If there has been an imbalance regarding the costs of ownership... improvements, etc.... then the legislation would operate to assist you to claim the other side need to account to you for their share.. and this can be taken from the proceeds of sale when the property is sold. PROPERTY LAW ACT 1974 - SECT 4343 Liability of co-owner to account(1) A co-owner shall, in respect of the receipt by the co-owner of more than the co-owner's just or proportionate share according to the co-owner's interest in the property, be liable to account to any other co-owner of the property.(2) In this section—co-owner means a joint tenant, whether in law or in equity, or a tenant in common, whether at law or in equity, of any property.I AGREE WITH LEON THAT IF THE OTHER PARTY REFUSES TO CO_OPERATE YOU CAN APPLY TO THE COURT TO ORDER THAT THE PROPERTY BE SOLDI assume from your comments that the other side have agreed to sell the property.. please be aware that if they refuse for any reason, you have legal rights to force a sale to occur. Please let me know if this happens, and I can assist you with the process. It is a complex process, and involves appointing a trustee to sell the property. Kind regards, James