LAWLINK – Can I ask my sibling to move out of the family home so I can sell it?

white and red wooden house miniature on brown table

Q: My mother died some two years ago and left her house, worth €275,000, to be divided equally between her four children. She stipulated in her will that the house be sold and the proceeds be divided equally. I am named as the executrix of her will. Unfortunately, my brother decided to move from his rented accommodation into my mother’s house with his partner and their two kids, and is now refusing to leave. His argument is that he shouldn’t have to pay rent when he can stay in the family home for nothing. My siblings and I wish to sell the house but he is refusing to let the auctioneer put a for sale sign up outside and has changed the locks. What are our options here?

Dear Reader,

This is a most unfortunate situation and I would have to say at the outset you should try and reason with your bother. It is no excuse to say that he moved in because he doesn’t have to pay rent. If your mother’s will clearly stipulates that the property is to be sold and divided equally between the four children, the house will have to be sold to comply with your mother’s wishes.

If your brother does not see sense, your only option is to pursue the matter through the courts, and you should attend your own solicitor at your earliest possible opportunity.

I suspect your solicitor will advise you to pursue the matters though the courts by way of an Equity Civil Bill. In the Equity Civil Bill your solicitor will set out what is called an Indorsement of Claim, which is basically a history of the matter. The claim will stipulate that without the consent of the Executrix (you), your brother wrongfully and unlawfully took possession of and took up residence in the property.

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The Indorsement of Claim will also state that by virtue of your brother’s trespass and nuisance, which is still continuing, that you are being precluded from executing a Contract for Sale for the property. It will recite that you will have thereby been precluded from recovering and distributing the proceeds of the perspective sale which you as the Executrix are legally obliged and duty-bound to do as Executrix of your mother’s Estate. The Plaintiff in the Civil Bill will be you as Executrix.

Essentially what you will be looking for is an injunction or another order restraining your brother from in any way trespassing upon the property or a mandatory injunction/order directing that your brother leave the property and return the keys to you.

You can also claim such damages as may be appropriate within the jurisdiction of, what I would say, the Circuit Court, given the value of the property. You will also be looking for all costs of any proceedings issued to be awarded against your brother’s interest in the property.

This matter appears to have been going on for a long period of time so I would suggest that you contact your solicitor immediately regarding this.