we are selling my mother's house but my brother who has been 'sofa surfing' rent free won't leave

andythefield

We will be selling my mother's house in order to pay for her residential care (We have power of attorney) but my brother who has been living there for the last few months refuses to leave. He has not paid a penny towards the upkeep of the house, or anything towars the high costs of utilities, and originally said he would be only staying for a few weeks 'until he gets his head together'. There is no written agreement. We have tried reasoning with him but he refuses to budge, and our concern is he will deliberately put off any potential buyers. Can we still sell the house with him there, and what are our legal obligations , if any, towards him?

canaldumidi

I suspect that:

andythefield said:

We will be selling my mother's house in order to pay for her residential care (We have power of attorney)

Who is 'We'? You say you have POA but do you mean just you? You and your partner perhaps? Or you and your sofa-surfing brother? It makes a big difference!

but my brother who has been living there for the last few months refuses to leave. He has not paid a penny towards the upkeep of the house, or anything towars the high costs of utilities,

Sounds like you are (perhaps illegally) failing in your duty as POA to act in your mother's interests

 and originally said he would be only staying for a few weeks 'until he gets his head together'. There is no written agreement.

So what verbal agreement was there? What was meant by you/him by 'a few weeks'? What agreement was reached regarding costs? How seriously were you taking your POA responsibilities?

We have tried reasoning with him but he refuses to budge, and our concern is he will deliberately put off any potential buyers.

Can we still sell the house with him there,

Yes in theory - if you can find a buyer willing to purchase the property for cash (no mortgage lender will lend!) and without 'vacant possession'. During the conveyancing process you'll have to declare him as a non-owning resident, and 99/100 buyers will then want him to sign an agreement that he will leave - which it sounds like he won't do.

 and what are our legal obligations , if any, towards him?

Well that largely depends if he is one of the 'we' you mentioned at the start! If he has joint POA and declines to sell, then I suspect your only option would be to approach the Office of Gardiianship and get him removed from the POA based on him acting in his own, not mum's, best interests. This might also involve prosecution......

If he does not have joint POA, then he is a licencee, since you granted him permission to use the property. You can rescind that licence at any time, and then evict him simply by changing the locks while he is out. Best to give him (a week's?) written notice. Don't mention the changing the locks part - just that his licence is rescinded and he has a week to leave.

GDB2222

I don’t think that @canaldumidi is really meaning to be sounding quite so judgmental. It was perfectly reasonable for you as attorneys to allow your brother to stay temporarily, to keep an eye on the property. That’s particularly if mother would have been happy with that arrangement.

 It’s a shame that your brother is being difficult, and you do need to end his license before marketing the property. 

The thing is, though, whether your mother would be happy with him ending up living on the street? If not, regardless of your rights as attorneys, you need to help him. The council may have a duty to house him, so I think that the sensible solution may be to drag him along to the homeless department and see what they can do for him. The key point needs to be that he is not making himself homeless intentionally, ie he was living in the house as a licensee but you now need to sell the house so he has to leave.

 You can always have him come to stay with you, of course.

TripleH

I think it's also that your obligation to your mother through the Power of Attorney makes a useful 'excuse' to tell your brother. "The law says I have to do this, unless you are able to pay market rate rent" for example. He may well get upset but if you have suggestions for how he can find alternative accomodation?

doodling

Hi,

TripleH said:

I think it's also that your obligation to your mother through the Power of Attorney makes a useful 'excuse' to tell your brother. "The law says I have to do this, unless you are able to pay market rate rent" for example. He may well get upset but if you have suggestions for how he can find alternative accomodation?

I really wouldn't get him to pay rent (or any other form of upkeep, although utilities would be OK). You don't want to turn a licensee into a tenant.  It is also almost certainly not in your mother's best interest to start a residential lettings business at her stage in life.

TripleH

No, but if he is told he has to move out, he may well say he'll pay (in his mind a token) rent. The arguement against that would then be that rent would have to be at fair market rate for the area not 'mates rates' and that is the POA rules stating that.

The presentation of rent is as much to change the status quo, otherwise he has no incentive to move on if he only has utilities to pay. He may think he is entitled to stay there as long as he likes without paying rent, the Op needs to persuade him that is not the case.

I agree that renting might not be the best idea (without a full set of circumstances presented). Sometimes you do have to do things in stages when explaining sensitive issues particularly to family members.

canaldumidi

I'd also warn against letting him become a tenant.

If he were to offer to pay rent, refuse. If he were to transfer money to you, send it back.

It is clearly not in mum's best interests to become a landlord, firstly because she seems to need the money from a sale (and I doubt rental income would suffice), and secondly because of the onerous obligations on her, and you, of becoming a landlord: paying tax, complying with leglislation, paying for safety checks etc.

And what if having become a tenant, he stopped paying the rent? He sounds like someone who might do this. But as a tenant he would be much much much more difficult to evict......

Mojisola

andythefield said:

We will be selling my mother's house in order to pay for her residential care (We have power of attorney) but my brother who has been living there for the last few months refuses to leave. He has not paid a penny towards the upkeep of the house, or anything towars the high costs of utilities, and originally said he would be only staying for a few weeks 'until he gets his head together'. There is no written agreement. We have tried reasoning with him but he refuses to budge, and our concern is he will deliberately put off any potential buyers. Can we still sell the house with him there, and what are our legal obligations , if any, towards him?

Wait til he goes out and change the locks, pack up his belongings and keep them safe and available for collection, and if you have the cash available, book him into a B&B for a couple of nights so he can't complain that you've made him sleep in the street. 

GDB2222

Mojisola said:

andythefield said:

We will be selling my mother's house in order to pay for her residential care (We have power of attorney) but my brother who has been living there for the last few months refuses to leave. He has not paid a penny towards the upkeep of the house, or anything towars the high costs of utilities, and originally said he would be only staying for a few weeks 'until he gets his head together'. There is no written agreement. We have tried reasoning with him but he refuses to budge, and our concern is he will deliberately put off any potential buyers. Can we still sell the house with him there, and what are our legal obligations , if any, towards him?

Wait til he goes out and change the locks, pack up his belongings and keep them safe and available for collection, and if you have the cash available, book him into a B&B for a couple of nights so he can't complain that you've made him sleep in the street. 

Of course, if he’s reading this thread, he may change the locks first.

canaldumidi

We still don't yet know if the sofa-surfing brother is also a joint POA.

If he is, he has as much right as the OP to decide who lives there (or doesn't), and whether (or not) to sell.

We will be selling my mother's house in order to pay for her residential care (We have power of attorney)

macman

Even if he is a signatory to the POA, then he won't on his own have the right to decide what is done with the house, or the right to occupy it until it is sold.
However, he could certainly refuse to allow the sale to proceed.
This assumes that all the parties to the POA need to agree to any sale, which would normally be the default requirement.