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CalAttorney2, Attorney
Category: Legal
Satisfied Customers: 10244
Experience:  Civil litigation attorney for individuals and businesses.
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Elderly Lawyer question- My mom in law (86yrs old) had a consent

Customer Question

Elderly Lawyer question- My mom in law (86yrs old) had a consent order settlement with my wife on becoming a life estate tenant and my wife sole owner. This order also said her brother must move out of 2nd floor apt. He did that and for awhile lived elsewhere. He has since moved in with his mom but refuses to pay any rent. He has taken over my mom-in-laws money and as a result twice her power has been turned off and now her water. They are all back on but this can't continue. What rights as owner does my wife have against her brother regarding him pay rent, pay share of bills, or any terms to his "lease." He claims that since there is no written lease between my mom-in-law and my wife, there is no control or legal action my wife can take against him. He says he is living under the same "life estate" rules as his mom.
Submitted: 4 years ago.
Category: Legal
Expert:  CalAttorney2 replied 4 years ago.

William B. Esq. :

Dear Customer, thank you for choosing Just Answer. I would like to assist you with your legal question today. Your wife is the landlord for her brother, he does not own a life estate, his mother cannot transfer that interest.

William B. Esq. :

Your wife may initiate an unlawful detainer action against your brother in law to get an order for possession of the property and evict him. She can do so simply by giving him 30 days notice to quit the property and then filing the unlawful detainer if he does not leave. She does not need to give a reason for the termination of his leasehold interest, she only needs to give him proper notice. (If you give me the state in which this property is located I may be able to provide you with some helpful links to assist you in this procedure).

William B. Esq. :

Regarding your brother in law's actions in turning off utilities, that is elder abuse (you cannot keep an elderly person from having power and water while controlling her finances, this is something that can be reported to law enforcement and/or civil authorities such as Adult Protective Services (or your jurisdiction's equivalent)).

William B. Esq. :

I hope that my answer was of assistance to you. My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back, I am happy to address follow-up questions. Please remember to rate my service once you have all the information you need. Thank you for your business!

Customer: replied 4 years ago.
The consent order from Mercer county NJ does say that "nothing will prevent Michael (brother-law) from living in the 1st fl apt should Julia (mom-in-law) desire he reside there with her." he is not part of this consent order or obligated to do anything. There must still be some boundaries of this agreement that "nothing" is interrepted. can her brother-in-law by this statement give him amnesty from any action?
Expert:  CalAttorney2 replied 4 years ago.
Dear Customer,

If there is already an active order in regard to the brother in law's tenancy, you will have to file a petition with the court for reconsideration or amendment of the order. There is no way to "shortcut" or avoid the order. Language that is absolute such as "nothing will prevent" is extremely strong and the only court that will address or revise such an order is the one that issued it in the first place.

To file a motion for reconsideration you will need to show changed circumstances upon which the motion can be based and ask that the Court exercise its discretion in revising its order or judgment. This type of motion is difficult to win (asking a Court to reverse an earlier order is a significant request), and I would highly recommend retaining a local attorney to represent your wife in this matter.
Customer: replied 4 years ago.
what if he disrupts the tenants in 2nd fllor apt (as he is doing) and playing loud music to annoy them. Their rent is needed to pay mortg and taxes to even keep the house. They are upset and asking us to do something. I can't lose this tenant rent from 2nd floor or possible lose the house. How do I deal with this?
Customer: replied 4 years ago.
Does the brother-in-law w/o a lease have unlmited rights to do as he pleases? Is there even a landlord /tenant relationship between my wife and her brother. She as owner should have some rights to protect her property from financial damages.
Customer: replied 4 years ago.
In this consent Julia is to pay her own utilites and homeowner insurance. She has not done that as her son has managed/controlled her money, resulting in water, power shutoff/on. How do I file a contempt action as she is vioalting the consent order? Im hoping this way someone (the court) would see why she is not paying and discover the son taking over his moms money and not paying the bills she is obligated to.He (brother) is violent and xconvict for violent crimes so I/we can not confront / negotiate with him. But if the contempt order brngs the law/court into this they will find for themselves what is happening. APS has told us they will not get involved if Julia wants to share her money or give her son access, thats her choice.
Expert:  CalAttorney2 replied 4 years ago.
Dear Customer,

The damage being caused to the property can be actionable as "waste" as it is destroying the value of the real property. This means that you can ask the court to order an injunction requiring that the brother in law act reasonably (you will need to identify what conduct is necessary to address).

Bringing a motion before the probate court to revisit this living situation based on changed facts and circumstances appears to be the most efficient mechanism to address these issues. What I can see are issues of:
elder abuse
trespass (noise affecting your tenants)
violations of the court order (if you can identify specific issues in the order that are being violated, either by the mother or brother in law)

I would still recommend hiring an attorney to draft and argue this motion to give you the maximum opportunity to succeed given the complexity of this issue, this would be a limited scope of representation.

Given the facts as you have posted them, it seems you would have a reasonable chance of success, but local counsel can review your facts in detail and give you a better evaluation as this type of motion will be very fact specific.

Unfortunately, some APS departments are unfortunately slow to act, either based on policy or resources, and will allow an elderly individual's assets to be drained prior to intervening. I am sorry to hear they are not willing to be of more assistance in your case.
Customer: replied 4 years ago.
I talked with Mercer county court clerk and they suggested I file a motion packet (no need for lawyer) and state the relief needed from court for the violation of consent order. Can you provide any add'l info I should need/include in this motion or state in legal terms? My concern is Julia will not pay and my wife will need a judgment against her. This seems to get back into attny fees and costly for what we already paid $50k in attny fees to get this settlement consent order. Do we need to pay more to enforce this consent order and each time its violated due to the manipulation /control of Julias finances? Any comments/suggestions?
Expert:  CalAttorney2 replied 4 years ago.
Dear Customer,

I am happy to hear the court clerk is so willing to schedule your motion (they should but it can sometimes be difficult).

I can provide some general information on how to put together a motion packet (what documents are needed and things to consider to make your motion more persuasive), but I am not allowed to do the legal research necessary to support the motion - you can probably do this yourself if you are willing to spend the time in a law library or using books called "practice guides".
I will follow up on the structure of motions and supporting documents once I am back at my desk.

I do not recommend hiring an attorney lightly. Only hire one based on a business decision "will hiring this attorney cost me more money than I will save by doing this myself - factoring in that an attorney will likely increase my opportunity for success".
I cannot make the decision as to whether it is worthwhile in your circumstances, you have very compelling facts but the issues of law for contempt and modification of an order can be complex.
Whether or not the other side hires counsel may help you make this decision.

I will follow up later when I am at my desk, please feel free to ask any questions.
Customer: replied 4 years ago.
I am simply going to file a motion of relief to : get reinbursed, get a GAL assigned for Julia finainces as was needed/determined during the law suit leading to the consent order, and for court to enforce the terms that state "Julia (mom-in-law) will be responsible for paying her own utlites and homeowner insurance on property" In 3 months she hasn't and I paid what was min to get power, water, phone back on. This has got to stop. Im hoping the court will intervene and assign a guardian. It was needed for a 1.5yr long case and not now? seems not to make sense. thanks
Expert:  CalAttorney2 replied 4 years ago.
I do wish you the best of luck. This seems to be a reasonable course of action given the situation and the statement of facts as you have given them.

To file a motion you will need the following documents:
(1) A notice of motion - a very short document telling the other party the date that the hearing will be heard on, the department, etc. (you will get this from the clerk when you call to get a court date - just before you file).

(2) A motion - this is another short document that has a statement of what you are asking the court to do, and the legal authority for why you should have the relief you are requesting (case law, statute, prior orders from the court)

(3) Memorandum of Points and Authorities - this is a lengthier document that has a complete "statement of facts" the "legal standard" law in more detail, and usually more authorities than those listed in the motion document itself, and the "legal argument" which is where you argue the law and facts to support your position.

(4) a declaration that contains the facts in support of your motion (and usually will have any exhibits attached to it with a paragraph of the declaration saying the document is a "true and correct copy" of the original and how the original is kept, this is called "authentication"

(5) a proof of service - this is a short piece of paper, usually something you can get offline or from the self help center that simply says you mailed the entire set of papers (you need to list each one in your proof) to the other side, have a non-party mail and sign the documents since you are not an attorney.