# Who is responsible for maintenance?



## Froggus (24 Jun 2008)

Hypothetical situation:

Son/Daughter buys parents house for less than market value

parents can live in house until their death

They do not pay rent, it is not a landlord/tenant situation

There is no legal arrangement about who maintains the property.

Who is responsible for maintaining the property?

thanks


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## ClubMan (24 Jun 2008)

I would imagine whoever they mutually agree is responsible for it. I doubt that anything like statutory rights come into this?


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## Froggus (24 Jun 2008)

There was no agreement as far I know mutual, verbal or legal.


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## NicolaM (24 Jun 2008)

Perhaps then a mutually agreeable solution needs to be negotiated, hypothetically?
Nicola


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## Welfarite (24 Jun 2008)

Froggus said:


> There is no legal arrangement about who maintains the property.
> 
> Who is responsible for maintaining the property?


 

If that question needs to be asked (hypothetically speaking, of course ), then there should be a legal agreement in place as they obviously are in disagreement about it!


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## sam h (24 Jun 2008)

I guess there would be a number of factors to consider, most of the moral/ethical ones rather than legal precedent.

 - How much below market value did the child pay?
 - Are the repairs one that affect the short or long term? (eg:heating problem or decoration, probably the parents. A problem that would affect the long-term stability of the property, probably the child...to protect their investment)
 - Can the parents/child afford the repairs?
 - Would it be more reasonable to split the costs?

For all concerned, it would be worth trying to get something sorted out sooner rather than later as it is things like this can easily affect relations.


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## mathepac (24 Jun 2008)

Froggus said:


> There was no agreement as far I know mutual, verbal or legal.


These are not exclusive as agreements are mutual and verbal, either written or oral and may or may not be legally enforceable.

Hypothetical non-agreements are more difficult to comment on.


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## Froggus (24 Jun 2008)

sam h said:


> I guess there would be a number of factors to consider, most of the moral/ethical ones rather than legal precedent.
> 
> - How much below market value did the child pay?
> - Are the repairs one that affect the short or long term? (eg:heating problem or decoration, probably the parents. A problem that would affect the long-term stability of the property, probably the child...to protect their investment)
> ...



Ok. What if (hypotheticaly speaking) the child/owner paid approx 30% of its market value, there is no money left, the child/owner may have money that he/she is not proclaiming but is refusing to maintain the property in a habitable condition (and may or may not be a psychopath and therefore not a reasonable person to deal with) the mother is now living on her own after being widowed and is living on her pension. Would there be a legal precedent for this.

thanks


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## sam h (24 Jun 2008)

Oh my God, what a (hypothetical) mess.

Did the parents get any legal advise before signing away their principal asset for such a low amount?
I'm not a legal person, but I reckon the mother will have to get legal advice to see if anything can be done.  Maybe they can show there was undue influence, or an implication that the child would maintain the property to the level they purchased it.

Any legal eagles around today who could offer advice?


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## rmelly (24 Jun 2008)

And are there and tax implications of such a hypothetical deal that may have been overlooked, given that the absence of any agreements shows it wasn't exactly thought out properly?


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## Bronte (24 Jun 2008)

Mother needs proper legal advice.  By any chance did father alone sign the property to the child, when (what year) did this happen and what were the reasons for it.


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## Froggus (24 Jun 2008)

Cant really divulge any more info about this hypothetical situation


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## mercman (24 Jun 2008)

Well the mother should simply report the son to the Tax authorities as he received a gift at 30 % below market value. Talk aout Gratitude or what.Poor woman.


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## Bronte (25 Jun 2008)

OP - I don't think your story is uncommon (child forces elderely parent into unliveable situation to get them out of home in order to get hands on property) so if you give some more details there is little possibility of your hypothical situation being discovered.


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## Froggus (25 Jun 2008)

rmelly said:


> And are there and tax implications of such a hypothetical deal that may have been overlooked, given that the absence of any agreements shows it wasn't exactly thought out properly?



I'm sure there must be but shopping them to the tax man won't solve the immediate problem. Maybe at some time in the future but not now.



Bronte said:


> Mother needs proper legal advice.  By any chance did father alone sign the property to the child, when (what year) did this happen and what were the reasons for it.



Yes it was the Father but the mother went along with it probably naively.
The child in question had two businesses and proclaimed to anyone that would listen that they were "doing very well". The truth is however that neither business ever made a profit and in fact have made significant losses. The house was sold in late 2004. The reason was to sustain the parents in their old age. But I feel they did not realise it's true worth at the time.



Bronte said:


> OP - I don't think your story is uncommon (child forces elderely parent into unliveable situation to get them out of home in order to get hands on property) so if you give some more details there is little possibility of your hypothical situation being discovered.



Ok keep your comments coming any advice is welcome


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## rmelly (25 Jun 2008)

how much money is required to make the repairs? Could another family member lend her the money and could she then take in lodgers to repay after repairs made?


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## Froggus (25 Jun 2008)

rmelly said:


> how much money is required to make the repairs? Could another family member lend her the money and could she then take in lodgers to repay after repairs made?



She doesn't want to take in any lodgers and it is unlikely that the money would be repaid. also since the family has effectively been disinherited (including the mother) there would be a reluctance to offer money to maintain a house that they do not have an interest in. The consensus is that the owner should pay and this is not the first maintenance issue and prob won't be the last. There needs to be some kind of clarification about this issue for the future.


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## Bronte (26 Jun 2008)

Would the mother be willing to go to court and fight the transfer of the property to the child?   Did she get independant legal advise (ie not the same solicitor as the father)at the time of the transfer in 2004, I believe there are rules on this, family home protection act springs to mind.  What does the owner of the property have to gain by not repairing the property?  The mother needs to go to a solicitor.


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## rmelly (26 Jun 2008)

is the 'approx 30% of its market value' based on the 2004 market value? Was it independently valued at the time to arrive at this market value? What condition was the house in at that point in time?


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## MOB (26 Jun 2008)

"The consensus is that the owner should pay and this is not the first maintenance issue and prob won't be the last."

Nor really a consensus with the person who counts though, is it.

Sorry to be a jarring note, but the test to apply here is to ask the question as to what the parties would have agreed at the time had they addressed this issue, and whether this can be deemed to be an implied term of their agreement.   In this exercise you would be guided to some extent by the terms which would be agreed if this were by 'bargain at arms length'.

If OP's parents had sold the house to one of the "Home Reversion" equity release type schemes, it is certainly possible (depending on age) that a payment of 30% of the value of the home is all they would have got, and that for this up-front payment, they would have left no equity behind them on their death.   

None of the equity release companies in operation undertakes to maintain a house while the equity releasor is still living there.  Unless the payment made was significantly less than what an equity release company would have paid, and it can be shown that there was some element of undue influence or duress, then the original bargain will stand.  Absent any evidence of such agreement being implicit in the particular circumstances of this case, it does not seem to me that 'property owner must carry out maintenance' could reasonably be argued to form an implied term of the agreement


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## Froggus (26 Jun 2008)

Bronte said:


> Would the mother be willing to go to court and fight the transfer of the property to the child?   Did she get independant legal advise (ie not the same solicitor as the father)at the time of the transfer in 2004, I believe there are rules on this, family home protection act springs to mind.  What does the owner of the property have to gain by not repairing the property?  The mother needs to go to a solicitor.



She would not be willing to go to court. She did not get independent legal advice. I have not heard of the family home protection act I will look it up.
I suspect that, as suggested above, that the next move will be "I cant afford to maintain the property we will have to sell it" (and take the profit of course)




rmelly said:


> is the 'approx 30% of its market value' based on the 2004 market value? Was it independently valued at the time to arrive at this market value? What condition was the house in at that point in time?



Based on 2004 value. I haven't seen a copy of the valuation. I was told that it was only worth x amount when in fact it was worth, at the very least 3.5x. It is a considerable property. x would barely buy you small plot in the same area so my estimation of it's value is conservative. It's market value is probably at a similar level now as i don't think we have returned to 2004 market level yet. But of course it's value is diminishing by the day and the owner is anxiously watching profit disappear.

Thanks for your replies. I'm really wondering if there is a legal precedent for this or has anyone come across anything similar in their experience.


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## Froggus (26 Jun 2008)

MOB said:


> "The consensus is that the owner should pay and this is not the first maintenance issue and prob won't be the last."
> 
> Nor really a consensus with the person who counts though, is it.
> 
> ...



I'm not sure that using the "equity release company" as an example is appropriate in this case as it was sold within the family and is therefore more open to interpretation. For instance the child constantly gave the false impression that he/she was wealthy and in fact lied to the parents about the true state of his/her financial situation which is only now coming to light. There might have been an assumption that maintenance of the house would never have been an issue. The transaction was certainly ill thought out and many assumptions may have been made.
If there is no agreement about ongoing maintenance then I feel that might have been a fault of the sols. for not clarifying it.

Another point which I should make is that the child alienated her parents from the rest of the family and the eagerness to disinherit (even at their own expense) may have been the overriding motivation.

Anyway as it stands the mother can't afford it, the child may or may not be able to afford so where does the family go from here.


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## aircobra19 (26 Jun 2008)

In short the child conned the parents, in to selling the house to him, and now wants to evict his own mother to sell the family home to raise some money. If the mother won't go to court I can't see what legally can be done. Are there any other siblings?


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## Froggus (26 Jun 2008)

Yeah pretty much.
There are 6 other siblings.


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## MOB (26 Jun 2008)

".......not sure that using the "equity release company" as an example is appropriate in this case as it was sold within the family and is therefore more open to interpretation. ........There might have been an assumption that maintenance of the house would never have been an issue. The transaction was certainly ill thought out and many assumptions may have been made."

This is in fact the nub of the issue.  However, you are going to have to move it from "assumptions may have been made" to  "assumptions were made" and you are going to have to point to some reasonably persuasive evidence of this.   

"If there is no agreement about ongoing maintenance then I feel that might have been a fault of the sols. for not clarifying it."    It would not be normal.  The solicitor should have ensured that your parents had the opportunity to take independent legal advice, but a transfer of a house to a child, reserving a right of residence, is a common enough transaction in Ireland.

[As an aside - this case may hinge to some extent on exactly what was done in the legal documents.  If the brother owns the house outright, and mother has right of residence, there may be some argument to be made that the right of residence implies a right to reside in a properly maintained house.  If, however, the mother and father actually owned the house for their lifetime, with reversion to the son, no such argument could reasonably be made]


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## Froggus (26 Jun 2008)

MOB said:


> If, however, the mother and father actually owned the house for their lifetime, with reversion to the son, no such argument could reasonably be made]



Ah I wasn't aware that such an arrangement could be made. So the child would not take "full" ownership until the death of both parents. Is that correct? Unfortunately I don't have all the details of the transaction so I can't say if that is the case.

If that is so it weakens the mothers position.

Hmmm a bit of a pickle.


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## Bronte (27 Jun 2008)

Froggus who is the mother complaining to, why is she not willing to go to court, is she willing to go to a solicitor even? Why was the house transferred in the first place.  Also how did this child alienate the parents from the other children, surely the parents had a say in this?


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## Froggus (27 Jun 2008)

Bronte, I really don't want to go into any more personally identifiable details. This is a delicate situation. All parties in this saga are partially to blame. Families can be very complicated. The problem is repairs need to be done to the house so who is going to pay for it? There is very little cooperation within the family as this has all but destroyed it (not just the sale of the house) What legal avenues can be explored? What rights does the mother have? what rights does the owner have?

Where can they go from here.

I understand it is difficult to comment on a situation without being in full possession of the facts. So I was really only looking for pointers and maybe an internet forum is not the best place to look. I thought I would give it a try. It may just come down to getting a sol. involved but I was hoping to avoid that.

Anyway thanks for the advice so far


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## jhegarty (27 Jun 2008)

Is there any of the money from the house sale left ?

Who is carrying insurance on the house ?


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## Froggus (27 Jun 2008)

jhegarty said:


> Is there any of the money from the house sale left ?



Not sure I would say very little



jhegarty said:


> Who is carrying insurance on the house ?



I don't know


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